Jones v. Social Security Administration, Commissioner of (TV3)
Filing
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MEMORANDUM OPINION Signed by Magistrate Judge Christopher H Steger on 8/13/18. (GRE, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
CONNIE JONES,
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Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
Case No: 4:17-cv-28
Judge Steger
MEMORANDUM OPINION
Plaintiff Connie Jones seeks judicial review under § 205(g) of the Social Security Act
("Act"), 42 U.S.C. § 405(g), from her denial by the Commissioner of the Social Security
Administration regarding her application for disability insurance benefits and supplemental
security income under Titles II and XVI of the Act, 42 U.S.C. §§ 401-34, 1381-83f.
The parties have consented to the entry of final judgment by the undersigned United
States Magistrate Judge according to the provisions of 28 U.S.C. § 636(c), with any appeal to the
Court of Appeals for the Sixth Circuit [Doc. 20].
For the reasons that follow, Plaintiff's Motion for Judgment Based on the Administrative
Record [Doc. 21] shall be DENIED, the Commissioner's Motion for Summary Judgment [Doc.
23] shall be GRANTED, and a judgment shall be entered AFFIRMING the Commissioner's
decision.
I.
Procedural History
In July 2013, 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 May 6, 1983,
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due to anxiety, depression, back and neck problems, as well as asthma (Tr. 10, 187, Doc. 14).
Plaintiff's claims were denied initially as well as on reconsideration (Id. at 76, 78-92). Due to
these denials, Plaintiff requested a hearing before an administrative law judge (Id. at 114-16).
In January 2016, ALJ Lauren Benedict heard testimony from Plaintiff, her attorney, as
well as a vocational expert (Id. at 37). The ALJ then rendered her decision in March 2016,
finding that Plaintiff was not under a "disability" as defined in the Act (Id. at 10-18).
Following the ALJ's decision, Plaintiff requested that the Appeals Council review her
denial; however, they rejected her request for review (Id. at 1-6).
Plaintiff has therefore
exhausted her administrative remedies, and the ALJ's decision stands as the "final decision" of
the Commissioner subject to judicial review. 42 U.S.C. §§ 405(g) and 1383(c)(3).
Having exhausted the administrative process, Plaintiff filed her Complaint on June 7,
2017, seeking judicial review of the Commissioner's decision under § 405(g) [Doc. 1]. The
parties have filed competing dispositive motions, and this matter is now ripe for adjudication.
II.
Findings by the ALJ
In her decision, the ALJ made the following findings:
1. Plaintiff had not engaged in substantial gainful activity since July 5, 2013, the
date of her application (20 C.F.R. § 416.971 et seq.).
2. Plaintiff has the following severe impairments: Degenerative Disc Disease,
Anxiety Disorder, Rule Out Borderline Intellectual Functioning (20 C.F.R. §
416.920(c)).
3. 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. §§ 416.920(d), 416.925,
and 416.926)).
4. Absent certain limitations, Plaintiff retained the residual-function capacity to
perform light work as defined in 20 C.F.R. § 416.967(b).
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5. Plaintiff is unable to perform any past relevant work (20 C.F.R. § 416.965).
6. Plaintiff was born on May 6, 1963, and was 50 years old, which is defined as
an individual closely approaching advanced age, when she filed her
application (20 C.F.R. § 416.963).
7. Plaintiff has a limited education and can communicate in English (20 C.F.R. §
416.964).
8. Transferability of job skills is not material to the determination of disability
because Plaintiff's past relevant work is unskilled (20 C.F.R. § 416.968).
9. 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 Plaintiff can perform (20 C.F.R. §§ 416.969 and
416.969(a)).
10. Plaintiff has not been under a disability, as defined in the Social Security Act,
since July 5, 2013, the date that the application was filed (20 C.F.R. §
416.920(g)).
(Tr. at 12-18)
III.
Standard of Review
When reviewing the Commissioner's determination of whether an individual is disabled
under § 405(g), the Court is limited to determining whether substantial evidence supports the
ALJ's findings, the ALJ's decision was reached through application of the correct legal standards
and made in accordance with the procedure authorized by the regulations and rulings
promulgated by the Commissioner. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir.
2009) (citation omitted); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Substantial evidence is "more than a scintilla of evidence but less than a preponderance;
it is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)
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(citations omitted). It is immaterial whether the record may also possess substantial evidence to
support a different conclusion from that reached by the ALJ, or whether the reviewing judge may
have decided the case differently. Crisp v. Sec'y of Health & Human Servs., 790 F.2d 450, 453
n.4 (6th Cir. 1986). The substantial evidence standard is intended to create a "'zone of choice'
within which the Commissioner can act, without the fear of court interference." Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986)). Therefore, the Court will not "try the case de novo, nor resolve conflicts in the evidence,
nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)
(citation omitted).
On review, the plaintiff "bears the burden of proving [their] entitlement to benefits."
Boyes v. Sec'y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).
IV.
Analysis
This case involves an application for disability insurance benefits.
An individual
qualifies for such benefits if they: (1) are insured for disability insurance benefits; (2) have not
reached the age of retirement; (3) have filed an application for such benefits; and (4) are
disabled. 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 twelve
months." 20 C.F.R. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). A claimant will be deemed
disabled 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,
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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); see 20 C.F.R. § 404.1505(a). Disability is evaluated according to a
five-step analysis summarized as follows:
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.
Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. §
404.1520). The claimant bears the burden of proof at the first four steps; however, the burden
shifts to the Commissioner at step five to prove that there is work available in the national
economy that the claimant could perform. Id.; Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391
(6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).
In this case, the sole issue before the Court is to determine whether the ALJ committed a
reversible error by finding that Plaintiff did not meet a listing-level impairment – specifically,
that the ALJ failed to evaluate Plaintiff's condition under Social Security Listing 12.04.
A claimant bears the burden of demonstrating that they meet a listed impairment at the
third step of the sequential evaluation. Evans v. Sec'y of Health & Human Servs., 820 F.2d 161,
164 (6th Cir. 1987). An impairment satisfies the listing only when it manifests the specific
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findings described in the medical criteria for that particular impairment. 20 C.F.R. § 416.925(d).
A claimant does not satisfy a listing unless all of the requirements of the listing are present. Hale
v. Sec'y of Health & Human Servs., 816 F.2d 1078, 1083 (6th Cir. 1987). See also, Thacker v.
Soc. Sec. Admin., 93 Fed. Appx. 725, 728 (6th Cir. 2004) ("When a claimant alleges that [they]
meet[ ] or equal[ ] a listed impairment, [they] must present specific medical findings that satisfy
the various tests listed in the description of the applicable impairment or present medical
evidence which describes how the impairment has such equivalency.") If a claimant successfully
carries this burden, the Commissioner must find that the claimant is disabled without considering
their age, education, and work experience. 20 C.F.R. § 416.920(d).
Under Listing 12.04, affective disorders are "[c]haracterized by a disturbance of mood,
accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged
emotion that colors the whole psychic life; it generally involves either depression or elation." 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. To meet the listing, a claimant must satisfy the
requirements of paragraphs A and B or the requirements of paragraph C. Id. Since neither party
raised arguments regarding paragraph C, the Court need only consider the relevant portions of
Plaintiff's arguments as to why she satisfies the requirements of paragraphs A and B. Those
requirements are:
A. Medically documented persistence, either continuous or intermittent, of
one of the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
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f.
g.
h.
i.
Feelings of guilt or worthlessness; or
Difficulty concentrating or thinking; or
Thoughts of suicide; or
Hallucinations, delusions or paranoid thinking;
OR
3. Bipolar syndrome with a history of episodic periods manifested by the
full symptomatic picture of both manic and depressive syndromes (and
currently characterized by either or both syndromes);
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace;
or
4. Repeated episodes of decompensation, each of extended duration;
Id. 1 Plaintiff maintains that she meets Listing 12.04 because she satisfies paragraphs
(A)(1) for Depressive Syndrome; (A)(3) for Bipolar syndrome; and paragraphs (B)(2), (B)(3),
and (B)(4) [Doc. 22-1 at PageID #: 881-82]. In support of her contention, Plaintiff cites to
treatment records from Centerstone Community Mental Health Care Centers [Id. at PageID #:
880-82].
While the ALJ did not address the paragraph A criteria, the Court finds that the Plaintiff
has failed to show that she suffers from two of the Paragraph B requirements. Plaintiff bases her
claim upon the Centerstone records, which note symptoms of depression, sleep disturbances,
crying spells, low motivation and self-esteem, interpersonal difficulties with family, anxiety,
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The Court notes that the Listing of Impairments, as well as other regulations cited throughout this Memorandum
Opinion, have recently been revised. The Court reviews the Commissioner's final decision using the rules that were
in effect at the time the decision was issued. The criteria of Listing 12.04 reflect the listing's criteria prior to the
rule change.
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difficulty concentrating, as well as difficulty completing tasks [Id. at PageID #: 880-81]. The
ALJ, however, determined that Plaintiff had mild limitations in her activities of daily living, and
moderate limitations in maintaining social functioning and concentration, persistence, or pace.
Tr. 13. The ALJ noted that Plaintiff did not have any episodes of decompensation. Id. In
making this determination, the ALJ found that Plaintiff's allegations were inconsistent with the
record. Id. at 13-16.
Plaintiff further notes that the ALJ did not consider the Centerstone records upon
rendering her decision. This argument is without merit. This Court should consider only what
was before the ALJ at the time of her decision. The Sixth Circuit has made clear "that where the
Appeals Council considers new evidence but declines to review a claimant's application for
disability insurance benefits on the merits," as is the case here, a court "cannot consider that new
evidence in deciding whether to uphold, modify, or reverse the ALJ's decision." Cline v. Comm'r
of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). However, a court can "remand the case for further
administrative proceedings in light of the evidence, if a claimant shows that the evidence is new
and material, and that there was good cause for not presenting it in the prior proceeding." Id.
(citation omitted). A remand in light of new evidence is known as a "sentence six remand."
Sizemore v. Sec'y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). The proponent
of the new evidence bears the burden of proving all three elements. Longworth v. Comm'r of
Soc. Sec., 402 F.3d 591, 589 (6th Cir. 2005).
Evidence is considered "new only if it was 'not in existence or available to the claimant at
the time of the administrative proceeding.'"
Foster, 279 F.3d at 357 (quoting Sullivan v.
Finkelstein, 496 U.S. 617, 626 (1990)). "New evidence must indeed be new; it cannot be
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cumulative of evidence already in the record." Pickard v. Comm'r of Soc. Sec., 224 F. Supp. 2d
1161, 1171 (W.D. Tenn. 2002) (quoting Elliott v. Apfel, 28 F. App'x 420, 424 (6th Cir. 2002)).
"Material evidence" exists if there is a "reasonable probability that the Secretary would have
reached a different disposition of the disability claim if presented with the new evidence."
Foster, 279 F.3d at 357 (quoting Sizemore, 865 F.2d at 711).
Moreover, "[e]vidence is material if it is probative of the claimant's condition during the
time period at issue before the ALJ." Pickard, 224 F. Supp. 2d at 1171.
Finally, "good cause" is shown "by demonstrating a reasonable justification for the
failure to acquire and present the evidence for inclusion in the hearing before the ALJ." Foster,
279 F.3d at 357. "The mere fact that the evidence at issue was not in existence at the time of the
ALJ's decision does not establish good cause." Pickard, 224 F. Supp. 2d at 1171.
In this case, the ALJ instructed Plaintiff that she would leave the record open for two
weeks following the hearing so that Plaintiff could submit additional documents (Tr. 38-39). It
is unclear as to why Plaintiff did not provide those records to the ALJ in a timely fashion.
Regardless, the Appeals Council did consider the Centerstone mental-health records and denied
Plaintiff's request for review (Tr. 1-5). This Court, however, cannot consider these records in its
substantive evaluation because the Centerstone records were already in existence when the ALJ
rendered her decision. Plaintiff has failed to carry her burden to warrant a sentence-six remand
since the evidence is not "new." See Longworth, 402 F.3d at 589. Still, the vast majority of the
Centerstone records reference treatment well before the relevant period for Plaintiff's disability
claim, which began on July 5, 2013 (Tr. 10, 151). See 20 C.F.R. §§ 416.330, 416.335.
Also, even if the Court were to consider them, the Centerstone mental-health records
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demonstrate that Plaintiff was non-compliant with treatment recommendations. Beginning in
September 2000, for instance, Plaintiff repeatedly underwent an intake evaluation with minimal
follow-up treatment, resulting in her discharge for non-compliance (Tr. 602, 606, 608-10, 61719, 621-24, 627-29, 636-39, 642, 648, 660, 667-75, 689, 702-04, 709-10, 712). From February
2010 through December 2013, there was a gap in Plaintiff's treatment at Centerstone (Id. at 576,
629).
After Plaintiff's July 2013 application date, she underwent an intake evaluation at
Centerstone in December 2013 (Id. at 576). But Plaintiff again fell into the same pattern,
missing the next two follow-up appointments (Id. at 586, 593). In fact, Plaintiff did not obtain
another initial evaluation until two years later in November 2015 (Id. at 561). Again, Plaintiff
failed to comply with follow-up appointments (Id. at 565-66).
Based upon these events, the Court finds that substantial evidence supports the ALJ's
decision denying benefits. See 20 C.F.R. § 404.1530(a) (explaining that a claimant's failure to
follow prescribed treatment may result in denial of benefits).
The ALJ also properly considered the medical opinions of the treating and reviewing
providers in concluding that Plaintiff did not have marked limitations in two domains. In one
instance, a psychologist, Michael Loftin, performed a consultative evaluation and determined
that Plaintiff "would have no more than mild difficulties with concentration, persistence and pace
and social relating" (Tr. 15. See id. at 266-71). In January 2014, another psychologist, Jerry
Campbell, performed a consultative evaluation and opined that Plaintiff had "moderate
impairment with respect to concentration, persistence and pace, mild limitations with respect to
social interaction, and moderate limitation adapting to change" (Id. at 16. See id. at 539-44).
During that same month, a third psychologist, Robert de la Torre, reviewed Plaintiff's file and,
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like the others, opined that Plaintiff had mild limitations in her activities of daily living and
maintaining social functioning, and moderate limitations in maintaining concentration,
persistence, or pace (Id. at 16, 84-86, 89-91).
Overall, the ALJ adequately reviewed the entire record and determined that Plaintiff did
not meet or equal a listing-level impairment under 12.04 (Id. at 12-13). Substantial evidence
supports the ALJ's finding that Plaintiff did not have marked limitations in her activities of daily
living, in maintaining social functioning, or in keeping concentration, persistence, or pace (See
id.)
V.
Conclusion
For the foregoing reasons, Plaintiff's Motion for Judgment Based on the Administrative
Record [Doc. 21] shall be DENIED, the Commissioner's Motion for Summary Judgment [Doc.
23] shall be GRANTED, and a judgment shall be entered AFFIRMING the Commissioner's
decision.
SO ORDERED.
/s/ Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE
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