Maynard v. Social Security Administration

Filing 40

REPORT AND RECOMMENDATION: For the reasons discussed above, the undersigned recommends that Plaintiff's "Motion for Judgment on the Record" be GRANTED, and that the decision of the Commissioner be REMANDED. Signed by Magistrate Judge E. Clifton Knowles on 7/8/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
JAMA L. MAYNARD,
Plaintiff,
Civil Action No. 2:14-cv-00027
Judge Sharp / Knowles

V.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the
final decision of the Commissioner of Social Security denying Plaintiff Supplemental Security
Insurance ("SSI"), as provided under Title XVI of the Social Security Act ("the Act"), as
amended. The case is currently pending on Plaintiff's "Motion for Judgment on the Record."
Docket No. 34. Defendant has filed a Response, arguing that the decision of the Commissioner
was supported by substantial evidence and should be affirmed. Docket No. 36. Plaintiff has
filed a Reply. Docket No. 39.
For the reasons stated below, the undersigned recommends that Plaintiff's "Motion for
Judgment on the Record" be GRANTED, and that the decision of the Commissioner be
REMANDED.
I. INTRODUCTION
Plaintiff filed her application for Supplemental Security Income ("SSI") on December 4,

2010, with a protective filing date of October 23, 2010, alleging that she had been disabled since
September 1, 2010, due to depression, anxiety, panic attacks, social phobia, arthritis, back
problems, and post-traumatic stress disorder. See, e.g., Docket No. 30, Attachment ("TR"), pp.
65, 127, 146. Plaintiff's application was denied both initially (TR 65) and upon reconsideration
(TR 66). Plaintiff subsequently requested (TR 75) and received (TR 31) a hearing. Plaintiff's
hearing was conducted on July 25, 2012, by Administrative Law Judge ("ALJ") James Dixon.
TR 31. Plaintiff and Vocational Expert, Dr. Ernest Brewer, appeared and testified. TR 32-64.
On September 25, 2012, the ALJ issued a decision unfavorable to Plaintiff, finding that
Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR 14.
Specifically, the ALJ made the following findings of fact:
The claimant has not engaged in substantial gainful activity
since October 23, 2010, the application date (20 CFR
416.971 et seq.).
2.

The claimant has the following severe impairments:
disorders of the back discogenic and degenerative,
disorders of the muscles, ligaments, and fascia. The
claimant alleged depression, anxiety, panic attacks, social
phobia [sic] arthritis, back problems, and post-traumatic
stress disorder (20 CFR 416.920(c)).
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 416.920(d), 416.925 and
416.926).

4.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform medium work as defined in
20 CFR 416.967(c) except that the claimant can lift and
carry (including upward pulling) 50 pounds occasionally
and 25 pounds frequently. The claimant can stand/walk
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and sit (with normal breaks) six out of eight hours. The
claimant's ability to push and pull is limited in the upper
extremities to frequent. The claimant can occasionally
climb ramps/stairs, but no ladders, ropes or scaffolds. The
claimant's other postural limitations should be performed
occasionally. The claimant can occasionally perform
overhead reaching. The claimant's other manipulative
limitations are unlimited. The claimant has no visual or
communicative limitations. She should avoid concentrated
exposure to vibrations and hazards such as machinery,
heights, and etc. According to the claimant's testimony,
she has limited neck mobility and can occasionally look
up/down and side to side. The claimant should have only
occasional exposure to pulmonary irritants. The claimant
should be able to concentrate and pay attention for two
hours given customary breaks and rests. The claimant can
have occasional public interaction or one on one interaction
with the public.
Medium work is defined as the ability to occasionally lift
and carry fifty pounds and frequently lift and carry twentyfive pounds out of an eight-hour workday. Medium work is
defined as the ability to stand and walk six hours and sit six
hours out of an eight-hour workday.
5.

The claimant is unable to perform any past relevant work
(20 CFR 416.965).

6.

The claimant was born on November 5, 1961 and was 48
years old, which is defined as a younger individual age 1849, on the date the application was filed (20 CFR 416.963).

7.

The claimant has a limited education and is able to
communicate in English (20 CFR 416.964).

8.

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that the
claimant is "not disabled," whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).

9.

Considering the claimant's age, education, work
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experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 416.969 and
416.969(a)).
10.

The claimant has not been under a disability, as defined in
the Social Security Act, since October 23, 2010, the date
the application was filed (20 CFR 416.920(g)).

TR 19-25,
On November 7, 2012, Plaintiff timely filed a request for review of the hearing decision.
TR 30. On December 31, 2013, the Appeals Council issued a letter declining to review the case
(TR 1), thereby rendering the decision of the AU the final decision of the Commissioner. This
civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the
Commissioner's findings are supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of record. Accordingly, the Court will discuss those matters only to the
extent necessary to analyze the parties' arguments.
III. CONCLUSIONS OF LAW
A. Standard of Review
This Court's review of the Commissioner's decision is limited to the record made in the
administrative hearing process. Jones v. Sec'y of Health & Hunan Serws., 945 F.2d 1365, 1369
(6th Cir. 1991). The purpose of this review is to determine: (1) whether substantial evidence
exists in the record to support the Commissioner's decision, and (2) whether any legal errors

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were committed in the process of reaching that decision. Landsaii, v. Sec 'y of Health & Human
Servs,, 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence" means "such relevant evidence as a reasonable mind might accept
as adequate to support the conclusion." Her v. Comm'r of Soc, Sec,, 203 F.3d 388, 389 (6th Cir.
1999), citing Richardson v. Pet-ales, 402 U.S. 389, 401 (1971). "Substantial evidence" has been
further quantified as "more than a mere scintilla of evidence, but less than a preponderance."
Bell v, Connn'r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996), citing Consol. Edison Co. v.
N.L.R.B., 305 U.S. 197, 229 (1938),
The reviewing court does not substitute its findings of fact for those of the Conunissioner
if substantial evidence supports the Commissioner's findings and inferences. Garner v, Heckler,
745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different
conclusion, the decision of the ALJ must stand if substantial evidence supports the conclusion
reached. Her, 203 F.3d at 389, citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). If the
Commissioner did not consider the record as a whole, however, the Commissioner's conclusion
is undermined. Hurst v. Sec'y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985),
citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir, 1980),
In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff's condition; (2) diagnosis and opinions of
medical experts; (3) subjective evidence of Plaintiff's condition; and (4) Plaintiff's age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings At The Administrative Level
The claimant carries the ultimate burden to establish an entitlement to benefits by proving
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his or her "inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). "Substantial gainful activity" not
only includes previous work performed by Plaintiff, but also, considering Plaintiff's age,
education, and work experience, any other relevant work that exists in the national economy in
significant numbers regardless of whether such work exists in the immediate area in which
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant's case is considered under a five-step
sequential evaluation process as follows:
(1) If the claimant is working and the work constitutes substantial
gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a "severe"
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it
must be determined whether he or she suffers from one of the
"listed" impairments' or its equivalent. If a listing is met or
equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level
impairments, it must be determined whether the claimant can
return to the job he or she previously held in light of his or her
residual functional capacity (e.g., what the claimant can still do
despite his or her limitations). By showing a medical condition
that prevents him or her from returning to such past relevant work,
the claimant establishes a prima facie case of disability.
(5) The burden then shifts to the Commissioner to establish the

'The Listing of Impairments is found at 20 CFR § 404, Subpt. P, App. 1.
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claimant's ability to work by proving the existence of a significant
number of jobs in the national economy which the claimant could
perform, given his or her age, experience, education, and residual
functional capacity.
See, e.g., 20 CFR §§ 404.1520, 416.920 (footnote added). See also Moon v. Sullivan, 923 F.2d
1175, 1181 (6th Cir. 1990).
The Commissioner's burden at the fifth step of the evaluation process can be satisfied by
relying on the medical-vocational guidelines, otherwise known as "the grid," but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant's characteristics identically match the characteristics of the applicable grid rule. Moon,
923 F.2d at 1181; 20 CFR § 404, Subpt. P, App. 2, Rule 200.00(e)(1), (2). See also Damron v.
Sec 'y of Health & Human Servs., 778 F.2d 279, 281-82 (6th Cir. 1985). Otherwise, the grid
cannot be used to direct a conclusion, but only as a guide to the disability determination. Id. In
such cases where the grid does not direct a conclusion as to the claimant's disability, the
Commissioner must rebut the claimant's prima facie case by coming forward with particularized
proof of the claimant's individual vocational qualifications to perform specific jobs, which is
typically obtained through vocational expert testimony. See Varley v. Sec'y ofHealth & Human
Sews., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity for purposes of the analysis required at stages
four and five above, the Commissioner is required to consider the combined effect of all the
claimant's impairments: mental and physical, exertional and nonexertional, severe and
nonsevere. See 42 U.S.C. § 423(d)(2)(B).

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C. Plaintiffs Statement Of Errors
Plaintiff contends that the AU erred by: (1) failing to give good reasons for rejecting the
opinion of Plaintiff's treating psychiatrist; and (2) failing to account in his RFC determination for
his own finding that Plaintiff had moderate deficiencies of concentration, persistence, and/or
pace. Docket No. 35. Accordingly, Plaintiff maintains that, pursuant to 42 U.S.C. § 405(g), the
Commissioner's decision should be remanded. Id.
Sentence four of § 405(g) states as follows:
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), 1383(c)(3).
"In cases where there is an adequate record, the Secretary's decision denying benefits can
be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking." Mowery
Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits 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). See also Nela,kirk v. Shalala, 25 F.3d 316, 318 (6th Cir.
1994).
1. Weight Accorded to Plaintiffs Mental Health Treatment Records
Plaintiff argues that the ALJ erred by failing to provide good reasons for rejecting the
opinion of her longtime treating psychiatrist, Dr. Viswa B. Durvasula. Docket No. 35 at 3.

Plaintiff notes that Dr. Durvasula had been Plaintiff's treating psychiatrist for approximately six
years as of the date of the hearing; that Dr. Durvasula's treatment records from November 2006
through November 2010, and May 2011 through December 2011, were contained in the record;
and that Dr. Durvasula had submitted her opinion of Plaintiff's work-related limitations. Id. at
3-4, referencing TR 348-76, 398, 402. Plaintiff summarizes the limitations found by Dr.
Durvasula, and notes that a State agency psychological consultant reviewed the record and
confirmed that Plaintiff had "significant (moderate) limitations of concentration, persistence, and
pace and, in particular, the ability to maintain attention and concentration for extended periods."
Id at 4. Plaintiff further maintains that, "Significantly ... the Agency did not require Plaintiff to
submit to a consultative psychological or psychiatric evaluation." Id.
Plaintiff argues that the ALJ's sole reason for rejecting Dr. Durvasula's opinion (that it
was not consistent with the medical record as the record does not reveal marked limitations in
Plaintiff's ability to perform physical activities), is erroneous because Dr. Durvasula did not
provide an assessment of Plaintiff s physical limitations and because the ALJ's analysis "falls
woefully short of what is required under the regulations." Id. at 5. Plaintiff additionally argues
that the ALJ's according "no weight" to Dr. Durvasula's opinion "is truly a remarkable finding"
because, as her treating psychiatrist and a medical specialist, Dr. Durvasula's opinion is due great
weight. Id. Plaintiff contends that the ALJ is required to give good reasons for rejecting such an
opinion, but that the ALJ in the instant action failed to do so. Id. at 6. Plaintiff further asserts
that the ALJ neither considered the fact that Dr. Durvasula was her longtime treating psychiatrist
nor that Dr. Durvasula, as a psychiatrist, was a specialist, nor did the ALJ acknowledge or
address Dr. Durvasula's knowledge of Plaintiffs impairments. Id at 7-8. Plaintiff argues,

therefore, that the ALFs weight afforded to the opinion of Dr. Durvasula was not supported by
substantial evidence and that this action should be remanded. Id.
Defendant responds that the AU properly evaluated the opinion of Dr. Durvasula and
determined that it was inconsistent with the medical record and thus not due substantial weight.
Docket No. 36 at 4. Defendant notes that Plaintiff's primary complaints were physical, rather
than mental, such that the fact that the bulls of the ALFs discussion was of Plaintiff's physical
impairments, rather than mental impairments, was appropriate. Id. at 6, referencing TR 37.
Defendant further points out that the AU noted that Plaintiff's allegations of mental problems
were the result of leading questions at the hearing. Id., referencing TR 51. Defendant
additionally argues that Dr. Durvasula's opinions conflict with the record, and that Dr.
Durvasula's treatment of Plaintiff was situational. Id. at 6-7. Defendant asserts that Plaintiff's
daily activities appear to be self-restricted, and that the ALFs consideration of this fact, the
psychiatrist's opinion, and the record as a whole support the weight afforded to the opinion of
Dr. Durvasula. Id. at 8-9.
Plaintiff replies that Defendant failed to address the assertion that the ALFs explanation
for rejecting the opinion of Dr. Durvasula consisted of only a general, unexplained finding that
the opinion was inconsistent with the record. Docket No. 39, p. 2. Plaintiff asserts that
Defendant "misleadingly" suggests that the ALFs explanation of the weight given to Dr.
Durvasula's opinion was sufficient under Sixth Circuit precedent. Id. Plaintiff further notes that
Defendant did not address Dr. Durvasula's medical specialty, treatment relationship, or lengthy
treatment history with Plaintiff and avoided discussing the requirement to give the opinion of
treating physicians with reasonable knowledge of Plaintiff's impairments controlling weight. Id.
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Plaintiff alleges that Defendant's arguments are unsupported by case law, and thus do not support
the ALJ's failure to discuss Dr. Durvasula's opinion as required by regulations. Id. at 4.
With regard to the evaluation of medical evidence, the Code of Federal Regulations
states:
Regardless of its source, we will evaluate every medical opinion
we receive. Unless we give a treating source's opinion controlling
weight guider paragraph (c)(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)(ii) 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.
(5) Specialization. We generally give more weight to the
opinion of a specialist about medical issues related to his or her
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area of specialty than to the opinion of a source who is not a
specialist.

20 CFR § 416.927(c) (emphasis added). See also 20 CFR § 404.1527(c).
The ALJ must articulate the reasons underlying his decision to give a medical opinion a
specific amount of weight.2 See, e.g., 20 CFR § 404.1527(d); Allen v, Coinni'r of Soc. Sec., 561
F.3d 646 (6th Cir. 2009); YVilson v. Connn'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The
reasons must be supported by the evidence and must be sufficiently specific so as to make clear
to any subsequent reviewers the weight the ALJ gave to the treating source medical opinion and
the reasons for that weight. SSR 96-2p.
The Sixth Circuit has held that, "[p]rovided that they are based on sufficient medical data,
the medical opinions and diagnoses of treating physicians are generally accorded substantial
deference, and if the opinions are uncontradicted, complete deference." Hoivard v. Comm'r of
Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002), quoting Harris v. Heckler, 756 F.2d 431, 435 (6th
Cir. 1985). If the ALJ rejects the opinion of a treating source, however, he is required to
articulate some basis for rejecting the opinion. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir.
1987). The Code of Federal Regulations defines a "treating source" as:
[Y]our own physician, psychologist, or other acceptable medical
source who provides you or has provided you, with medical

2 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 CFR § 1527(d), by analyzing the physician's contradictory opinions or by analyzing other
opinions of record. See, e.g, Friend v, Comnz'r of Soc, Sec., 375 F. App'x 543, 551 (6th Cir.
2010); Nelson v. Conun'r of Soc. Sec., 195 F. App'x 462, 470-72 (6th Cir. 2006); Hall v. Conun'r
of Soc. Sec., 148 F. App'x 456, 464 (6th Cir. 2006).
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treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.
20 CFR § 404.1502.
In the instant action, regarding Plaintiff's mental health treatment records, the ALJ stated
only that, "the record did not reveal that the claimant received significant psychiatric treatment."
TR 22.3 There is no indication in the ALFs decision that he was aware either that Plaintiff
received nearly six years of mental health treatment, or that those treatment records were part of
the evidentiary record before him.
The ALJ discussed the opinion of treating psychiatrist Dr. Durvasula as follows:
A medical resource statement dated December 8, 2011 from Viswa
Durvasula, M.D., revealed marked limitations in understanding,
carrying out, and remembering detailed instructions. The claimant
had marked limitations responding appropriately to normal work
pressures in a usual work setting, sustaining an ordinary routine
without special supervision, performing at a consistent pace
without an unreasonable number, and length of rest periods
(Exhibit 17F).
The undersigned does not grant any weight to the medical source
statement as it is not consistent with the medical record. The
record des [sic] not reveal marked limitations in her ability to
perform physical activities.

3 The ALJ also noted Plaintiff's report of mental health treatment, stating:
The claimant alleged that she has received mental health treatment
since she was in her 20s. The claimant alleged that she had a
social phobia and withdrew from everything, but the medical
record revealed that she attended church, drives, visited with
friends and family, and talked on the phone. Moreover, after
receiving leading questions from counsel, the claimant stated that
she experiences panic attacks with anxiety and other
symptomotology.
TR 22.
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TR 23, citing TR 428-31.
The ALJ neither acknowledges that Dr. Durvasula was Plaintiff's treating psychiatrist,
nor that Dr. Durvasula was a specialist. As noted above, the record contains Dr. Durvasula's
psychiatric treatment records of Plaintiff from November 10, 2006 until December 3, 2011. TR
352-76, 412-13, 426-27, 493-95. Because the ALJ does not address or even reference these
treatment records and it is unclear from the ALJ's articulated rationale whether the ALJ was
aware of or considered these treatment records, the undersigned cannot determine whether the
ALJ was aware of, or considered, these treatment records. Accordingly, further proceedings are
necessary to fully evaluate these treatment records with the evidence of record as a whole.
The Sixth Circuit has held that remand was required despite the existence of substantial
evidence to support the ALJ's decision where the ALJ might have reached a different decision
had he not misconstrued certain evidence or overlooked other evidence. Ufornia/Shelby Business
Forms v. N.L.R.B., 111 F.3d 1284, 1292-1293 (6`h Cir. 1997). Because the undersigned cannot
determine with certainty that the ALJ was aware of or considered Plaintiff's lengthy mental
health treatment records, the undersigned recommends that this action be REMANDED for
further consideration of this matter.
RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff's "Motion
for Judgment on the Record" be GRANTED, and that the decision of the Commissioner be
REMANDED.

4

Because the undersigned recommends that this action be remanded, the undersigned will
not analyze Plaintiff's remaining statement of error.
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Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. 4rn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111
(1986); 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72,

E. CLIFTO KNOWLES
United States Magistrate Judge

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