Carden v. Social Security Administration
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 3/13/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
LINDA L. CARDEN
NANCY BERRYHILL,1 ACTING
COMMISSIONER OF SOCIAL
Pending before the Court is Plaintiff’s Motion for Judgment on the Administrative Record
(Docket No. 12). For the reasons stated herein, Plaintiff’s Motion is DENIED.
This is a civil action for judicial review of the Social Security Administration’s denial of
benefits to Plaintiff Linda L. Carden. On March 12, 2011, Plaintiff filed applications for disability
benefits under Title II and for supplemental security income under Title XVI, alleging that the onset
date for her disability was February 8, 2011. The Social Security Administration (“SSA”) denied
both applications, and Plaintiff filed a written request for a hearing. An Administrative Law Judge
(“ALJ”) held a hearing on November 5, 2012, at which Plaintiff and Ernest W. Brewer, a vocational
expert testified. In a report dated January 31, 2013, the ALJ found that Plaintiff was not disabled
under the Social Security Act. Administrative Record (“AR”), found at Docket No. 10, p. 11.2
Nancy Berryhill became acting Commissioner for the Social Security
Administration on January 23, 2017.
The Court cites the AR by the page numbers which are stamped in the bottom
right corner of the document.
At the hearing, Plaintiff confirmed that her work history for the past 15 years included
accounts payable clerk, server in a restaurant, and craft sales. AR, p. 29. She stated that she left her
last job as an accounts payable clerk because of constant pain in her feet and in her nerves and
because she couldn’t stay focused. Id., p. 30. She testified that she also had trouble with her vision
and could not afford glasses. Id. In addition, she stated that she was being treated for emotional and
psychological problems. Id., p. 31.
Plaintiff testified that neuropathy affected her ability to do a stand-up job because she had
constant pain in her feet and radiating pain into her hands and arms. AR, p. 32. She stated that she
has good days and bad days, probably five or six out of seven being bad. Id. Plaintiff testified that
she has problems with depression and she was at the “maximum amount” of her depression
medication. Id., pp. 32-33. Plaintiff stated that she also suffers from memory loss associated with
her HIV/AIDS. Id., p. 33.
Mr. Brewer, the vocational expert, testified (using the Dictionary of Occupational Titles)
that a person fitting the ALJ’s hypothetical3 and closely approaching advanced age, with a high
school plus education and prior relevant work experience, could perform jobs in the areas of food
preparation worker at the medium level, hand packaging type jobs, and inspector-grader type jobs.
AR, pp. 36-37. Brewer also testified that if Plaintiff had mild to moderate pain, it would not change
The hypothetical included the following characteristics: residual functional
capacity for a range of medium work; limited to one hour of walking at a time; no more than
frequent pushing or pulling bilaterally with either upper or lower extremity; no more than
occasional climbing, kneeling, crouching or crawling; work with only casual and superficial
contact with co-workers and the public; limited to direct and non-confrontational supervision;
and changes in the workplace limited to infrequent and gradually introduced. AR, pp. 35-36.
his testimony; but severe pain would eliminate the jobs he had identified. Id., pp. 37-38.
Furthermore, Brewer stated that if Plaintiff had a combination of impairments that would require her
to be absent from her normal eight-hour work day for five days a week (up to ten percent of the time
on a regular basis), that also would eliminate the jobs he had identified. Id., p. 38.
THE FIVE-STEP INQUIRY
The claimant bears the ultimate burden of establishing an entitlement to benefits by proving
her “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).
The claimant’s physical or mental impairment must result from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques. 42 U.S.C. § 423(d)(3).
In determining disability, the SSA and the ALJ consider a five-step sequential evaluation
process. The Sixth Circuit has described these five steps as:
(1) A claimant who is engaging in substantial gainful activity will not be found to be disabled
regardless of medical findings.
(2) A claimant who does not have a severe impairment will not be found to be disabled.
(3) A finding of disability will be made without consideration of vocational factors if a
claimant is not working and is suffering from a severe impairment which meets the duration
requirement and which meets or equals a listed impairment in Appendix 1 to Subpart P of the
Regulations. Claimants with lesser impairments proceed to step four.
(4) A claimant who can perform work that he has done in the past will not be found to be
(5) If a claimant cannot perform his past work, other factors including age, education, past
work experience, and residual functional capacity must be considered to determine if other work can
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007).
The ALJ in this case made the following findings:
(1) The claimant meets the insured status requirements of the Social Security Act through
December 31, 2016.
(2) The claimant has not engaged in substantial gainful activity since February 8, 2011, the
alleged onset date.
(3) The claimant has the following severe impairments: human immunodeficiency virus
(HIV) and depressive disorder.
(4) The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments.
(5) The claimant has the residual functional capacity to perform the full range of medium
work except that she is limited to one hour of walking at a time; she is limited to no more than
frequent pushing and/or pulling bilaterally with her arms; she can do no more than occasional
climbing, kneeling, crouching, and/or crawling; she is limited to work where contact with coworkers and the general public is limited and superficial; supervision should be direct and nonconfrontational; and she can adapt to infrequent and gradual changes in the workplace.
(6) The claimant is unable to perform any past relevant work.
(7) The claimant was born on January 20, 1959, which defines her as an individual closely
approaching advances age, on the alleged disability onset date, when she was 52 years old.
(8) The claimant has at least a high school education and is able to communicate in English.
(9) Transferability of job skills is not material to the determination of disability because
applying the Medical-Vocational Rules directly supports a finding of “not disabled,” whether or not
the claimant has transferable job skills.
(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 claimant
(11) The claimant has not been under a disability, as defined in the Social Security Act, from
February 8, 2011, through the date of the ALJ decision.
AR, pp. 13-18.
PLAINTIFF’S STATEMENT OF ERRORS
Plaintiff contends that the ALJ erred in the following ways:
(1) Failing to find that Plaintiff’s peripheral neuropathy constituted a “severe impairment”.
(2) Failing to follow 20 C.F.R. § 404.1527 in his consideration of the medical assessment
completed by consultant examiner Donita Keown, MD.
Docket No. 13, p. 3.
STANDARD OF REVIEW
This Court’s review of the ALJ’s decision is limited to an inquiry into whether there is
substantial evidence to support the findings of the ALJ and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016).
Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971). If substantial evidence
supports the ALJ’s decision, the Court defers to that finding even if there is substantial evidence in
the record that would have supported an opposite conclusion. Blakley v. Comm’r of Soc. Sec., 581
F.3d 399, 406 (6th Cir. 2009).
The Court may not try the case de novo, resolve conflicts in evidence, or decide questions of
credibility. Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012). The Court has the 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).
Plaintiff contends that the ALJ should have found, at step two of the analysis, that Plaintiff’s
peripheral neuropathy constituted a “severe impairment.”4 The ALJ found that Plaintiff had two
severe impairments: HIV and depressive disorder. AR, p. 13.
The second step in the disability evaluation process requires the ALJ to consider the medical
severity of the claimant’s impairments. Schults v. Colvin, 1 F.Supp.3d 712, 718 (E.D. Ky. 2014). An
impairment is considered severe if it “significantly limits an individual’s physical or mental ability
to perform basic work activities.” Id. For an impairment to be “not severe,” it must be a slight
Defendant points out that Plaintiff did not list neuropathy on her disability report
as a physical condition that limited her ability to work. See AR, p. 147.
abnormality that has no more than a minimal effect on the ability to do basic work activities. Id.; see
also SSR 96-3p, 1996 WL 374181 (July 2, 1996).
If the ALJ finds that at least one of the claimant’s alleged impairments is severe in nature, the
claim survives the step two screening process. 20 C.F.R. § 404.1520(a); Schults, 1 F.Supp.3d at 718.
Because the regulations instruct the ALJ to consider both severe and non-severe impairments in the
remaining steps of the disability determination analysis, any impairment erroneously labeled as “nonsevere” will not be ignored altogether. Id. For this reason, courts have consistently held that an ALJ
does not commit reversible error when he or she decides that some of the claimant’s impairments are
not severe, but finds that other impairments are severe and proceeds with his or her analysis. Id. at
719. Once any one impairment is found to be severe, the ALJ must consider both severe and nonsevere impairments in the subsequent steps. Id.
Plaintiff testified that she suffers from constant pain in her feet, hands and arms. The ALJ
found that the medical records indicate that Plaintiff has sought consistent treatment for pain,
swelling, tenderness and redness in various parts of her body associated with complications from HIV
and neuropathy. AR, p. 15.5 Because the ALJ considered neuropathy in his analysis, along with the
two impairments which he found to be severe, he did not err in failing to find that neuropathy was
Dr. Keown’s Medical Assessment
The consulting physician, Dr. Keown, found that Plaintiff had HIV positive and
neuropathy. AR, p. 389. Dr. Cohn, a non-examining state agency physician, indicated that
Plaintiff’s primary diagnosis was HIV and her secondary diagnosis was neuropathy. Id., p. 451.
His records reflect that Plaintiff’s neurologist related her neuropathy to HIV. Id., p. 458. Dr.
Kohn also reported that Plaintiff “has some problems with neuropathy, however, sensory exam on
recent exam mostly normal.” Id.
Plaintiff argues that the ALJ erred by failing to follow 20 C.F.R. § 404.1527 in considering
the medical assessment completed by Dr. Keown. The SSA has promulgated regulations for the
agency to use in evaluating medical evidence and opinions. For example, the agency is required to
evaluate every medical opinion it receives. 20 C.F.R. § 404.1527(c). Generally, the agency gives
more weight to the medical opinion of a source who has examined the claimant than to the medical
opinion of a medical source who has not examined the claimant. 20 C.F.R. § 404.1527(c)(1). The
agency must give the opinion of a treating physician controlling weight if it finds that opinion well
supported and not inconsistent with the other substantial evidence in the record. Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 546 (6th Cir. 2004). Dr. Keown is not a treating physician; she is a
consulting, examining physician.
The ALJ stated that he gave “partial weight” to the opinion of Dr. Keown. AR, p. 17. He
found that Dr. Keown’s opinions regarding Plaintiff’s postural and walking limitations were
consistent with the medical evidence of record. Plaintiff contends that the ALJ erred in not
mentioning Dr. Keown’s opinions regarding Plaintiff’s ability to lift and carry. The ALJ found no
limitations as to those activities. The ALJ was not required to provide any explanation for choosing
to give weight to some of Dr. Keown’s findings but not all of them. Social Security regulations
require the agency to provide good reasons for the weight given to a treating physician’s opinion.
Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009), but Dr. Keown is not Plaintiff’s
treating physician. Dr. Keown was a consulting physician, and her opinions need not be evaluated
in accordance with the treating physician rules. Rudd v. Comm’r of Soc. Sec., 531 Fed. Appx. 719,
730 (6th Cir. 2013).
In addition, the ALJ’s opinion not to include lifting and carrying limitations is supported by
medical evidence (including Dr. Keown’s) that Plaintiff retained full strength. AR, pp. 335, 338 and
389. For these reasons, the ALJ did not err with regard to Dr. Keown’s opinions on lifting and
The Court finds that Plaintiff’s Motion for Judgment on the Administrative Record should
be, and is, DENIED. The decision of the SSA is AFFIRMED.
IT IS SO ORDERED.
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE
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