Nash v. Social Security Administration

Filing 17

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that plaintiff's motion for judgment on the administrative record be DENIED, and that the decision of the SSA be AFFIRMED. Signed by Magistrate Judge John S. Bryant on 8/11/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
MARTY LYNN NASH
v.
SOCIAL SECURITY ADMINISTRATION

To:

)
)
)
)
)

No. 2:14-0081
Judge Trauger/Bryant

The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c), to
obtain judicial review of the final decision of the Social Security Administration (“SSA” or
“the Administration”) denying plaintiff’s application for supplemental security income (SSI),
as provided under the Social Security Act. The case is currently pending on plaintiff’s
motion for judgment on the administrative record (Docket Entry No. 12), to which
defendant has responded (Docket Entry No. 15). Plaintiff has further filed a reply in support
of his motion. (Docket Entry No. 16) Upon consideration of these papers and the transcript
of the administrative record (Docket Entry No. 10),1 and for the reasons given below, the
undersigned recommends that plaintiff’s motion for judgment be DENIED and that the
decision of the SSA be AFFIRMED.

I. Introduction
Plaintiff protectively filed his application for benefits on March 3, 2011,

1

Referenced hereinafter by page number(s) following the abbreviation “Tr.”

alleging the onset of disability as of September 1, 2001, due to problems with his back and
left leg/foot. (Tr. 129) Plaintiff subsequently amended his alleged onset date to March 3,
2011, corresponding with the date his SSI application was filed. (Tr. 32) Following denials
at the initial and reconsideration stages of agency review, plaintiff requested de novo hearing
of his claim by an Administrative Law Judge (ALJ). The ALJ hearing was held on December
7, 2012 (Tr. 27-45), and plaintiff appeared with counsel and gave testimony. Before
adjourning the hearing, the ALJ gave plaintiff’s counsel 30 days to supplement the record.
(Tr. 44) On February 28, 2013, the ALJ issued a written decision in which he found that
plaintiff was not under a disability as defined by the Social Security Act. (Tr. 13-21) That
decision contains the following enumerated findings:
1.

The claimant has not engaged in substantial gainful activity since March 3,
2011, the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severe impairments: chronic back pain with
radiculopathy and left foot drop (20 CFR 416.920(c)).

3.

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 sedentary work as
defined in 20 CFR 416.967(a).

5.

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

6.

The claimant was born on March 11, 1968 and was 42 years old, which is
defined as a younger individual age 18-44, on the date the application was
filed (20 CFR 416.963).

7.

The claimant has at least a high school education and is able to communicate
2

in English (20 CFR 416.964).
8.

Transferability of jobs skills is not material to the determination of disability
because using the Medical-Vocational 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 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 March 3, 2011, the date the application was filed (20 CFR
416.920(g)).

(Tr. 15-16, 19-20)
On June 26, 2014, the Appeals Council denied plaintiff’s request for review of
the ALJ’s decision (Tr. 1-3), thereby rendering that decision the final decision of the
Administration. This civil action was thereafter timely filed, and the court has jurisdiction.
42 U.S.C. §§ 405(g), 1383(c). If the ALJ’s findings are supported by substantial evidence,
based on the record as a whole, then those findings are conclusive. Id.

II. Review of the Record
The following record review is taken from plaintiff’s brief:
Plaintiff, Marty Lynn Nash, was born on March 11, 1968 and was 43 years old upon
his alleged disability onset date. Mr. Nash possesses the equivalent of a high school
education.
While at work in 1994, a plywood wall fell 15’ onto Mr. Nash’s back causing severe
injuries. (AR. at p. 189.) In August of 2001, Dr. Nahem A. Mainey observed that Mr. Nash
suffered from pain in his left hip, posterior left thigh, posterior left calf, and left big toe. (AR.
3

at p. 189.) Dr. Mainey also noted MRI and Myelogram CT findings of spondylolisthesis
Grade I L5 on S1, L5 root lesion on the left, “[b]ilateral pars interarticular defects at the L5
level with mild Grade I anterior listhesis of L5 with respect to Sl.” (AR. at p. 189-90.)
Although Dr. Naimey observed no loss in muscle mass in Mr. Nash’s left leg or in lumbar
range of motion, he did note genu recurvatum of the left knee, significant left foot drop,
unsteady gait, and significant loss of lower extremity strength. (AR., DE 10, p. 189-90.) Dr.
Naimey recommended surgery to fuse L5 to S1 but opined that Mr. Nash’s condition would
not improve with decompression. (AR. at p. 190.) Dr. Mainey referred Mr. Nash to Dr. James
Feild in September of 2001. (AR. at pp. 191-96.) According to Mr. Nash, he underwent
surgery to place one rod horizontally across his pelvis for support, secured by screws to his
hips, and one vertically to stabilize his vertebrae. (AR. at p. 222)
On July 14, 2011, Mr. Nash was examined by Dr. Raymond Azbell, M.D., a DDS
consultative expert. Dr. Azbell noted significant loss in range of motion to Mr. Nash’s lumbar
spine, “significant footdrop” on the left with “marked” weakness at the left foot, left ankle,
and left knee. (AR. at p. 198.) According to Dr. Azbell, these impairments result in a marked
limp favoring the left side. (AR. at p. 198.) Dr. Azbell opined that Mr. Nash retains the
residual functional capacity (“RFC”) to lift and carry up to 20 pounds occasionally and 10
pounds frequently; sit for 4 hours at a time but for no more than 6 hours in an 8 hour work
day; stand for 20 minutes at a time but no more than 1 hour in an 8 hour work day; and walk
for 15 minutes at a time but no more than 1 hour in an 8 hour work day. (AR. at p. 201.) Dr.
Azbell further concluded that Mr. Nash may never use foot controls; never climb ladders,
balance, kneel, crouch, or crawl; and he is unable to walk a block at a reasonable pace over
rough or uneven surfaces. (AR. at pp. 202-04.)
On September 5, 2012, Dr. Pearline Butcher, M.D., reviewed the diagnosis and
opinions of Dr. Mainey and Dr. Azbell and performed her own thorough examination of Mr.
Nash. While Dr. Butcher observed the same deficiencies as Dr. Azbell, she also noted loss in
muscle mass in Mr. Nash’s left thigh and left calf that Dr. Azbell failed to appreciate (AR. at
p. 224) According to Dr. Butcher, Mr. Nash retains the RFC to lift and carry only 10 pounds
occasionally but never more. (AR., DE 10, p. 226.) Mr. Nash may, with the ability to
alternate positions at will, sit for 5 minutes at a time but no more than 1 hour in an 8 hour
work day; stand for 5 minutes at a time but no more than 30 minutes in an 8 hour work day;
walk for 1-2 minutes at a time but no more than 30 minutes in an 8 hour work day; and walk
no more than 15 feet without a cane due to his imbalance. (AR. at p. 227.) Further, like Dr.
Azbell, Dr. Butcher opined that Mr. Nash may never use his left foot while engaging in work
related activities; he can never climb ladders, balance, stoop, kneel, crouch or crawl; and is
unable to walk a block at a reasonable pace over rough or uneven surfaces. (AR. at p. 229.)

4

(Docket Entry No. 12-1 at 2-4)

III. Conclusions of Law
A. Standard of Review
This court reviews the final decision of the SSA to determine whether that
agency’s findings of fact are supported by substantial evidence in the record and whether the
correct legal standards were applied. Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d
124, 125 (6th Cir. 2003). “Substantial evidence is defined as ‘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.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007)(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)). Even if the evidence could also support a different conclusion, the SSA’s decision
must stand if substantial evidence supports the conclusion reached. Her v. Comm’r of Soc.
Sec., 203 F.3d 388, 389 (6th Cir. 1999).
B. Proceedings at the Administrative Level
The claimant has the ultimate burden to establish an entitlement to benefits
by proving 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 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.” Id. at §
423(d)(3). In proceedings before the SSA, the claimant’s case is considered under a five-step
5

sequential evaluation process, described by the Sixth Circuit Court of Appeals as follows:
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 disabled.
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 be performed.
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)(citing, e.g., Combs v. Comm’r
of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006)(en banc)); 20 C.F.R. §§ 404.1520(b)-(f),
416.920 (b)-(f).
The SSA’s burden at the fifth step of the evaluation process can be carried by
relying on the medical-vocational guidelines, otherwise known as “the grids,” 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. See
Wright v. Massanari, 321 F.3d 611, 615-16 (6th Cir. 2003). Otherwise, the grids cannot be
used to direct a conclusion, but only as a guide to the disability determination. Id.; see also
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). In such cases where the grids do not
direct a conclusion as to the claimant’s disability, the SSA must rebut the claimant’s prima

facie case by coming forward with proof of the claimant’s individual vocational qualifications

6

to perform specific jobs, which is typically obtained through vocational expert (“VE”)
testimony. See Wright, 321 F.3d at 616 (quoting Soc. Sec. Rul. 83-12, 1983 WL 31253, *4
(S.S.A.)); see also Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity (“RFC”) for purposes of the
analysis required at steps four and five above, the SSA 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), (5)(B); Foster v. Bowen, 853 F.2d 483,
490 (6th Cir. 1988).
C. Plaintiff’s Statement of Errors
Plaintiff first contends that substantial evidence does not support the ALJ’s
finding of his RFC, in light of the ALJ’s failure to conduct a function-by-function assessment
which accounts for all of the postural and manipulative limitations assessed by the examining
physicians in this case. In particular, plaintiff spotlights the concurring opinions of Drs.
Azbell and Butcher that plaintiff’s gait was limping and unstable; that he can never use his
left foot to operate foot controls; that he can never climb ladders, balance, kneel, crouch or
crawl; and, that he is unable to walk a block at a reasonable pace on rough or uneven
surfaces.
The Sixth Circuit has examined the requirement that a function-by-function
assessment inform the RFC determination, finding as follows:
In Bencivengo [v. Comm’r of Soc. Sec., 251 F.3d 153 (table), No. 00-1995 (3d
Cir. Dec. 19, 2000)], the Third Circuit stated, “Although a function-byfunction analysis is desirable, SSR 96–8p does not require ALJs to produce such
a detailed statement in writing.” Bencivengo, slip op. at 4. The Third Circuit
distinguished between what an ALJ must consider and what an ALJ must
7

discuss in a written opinion. The ALJ need not decide or discuss uncontested
issues, “the ALJ need only articulate how the evidence in the record supports
the RFC determination, discuss the claimant's ability to perform sustained
work-related activities, and explain the resolution of any inconsistencies in the
record.” Bencivengo, slip op. at 5.
Delgado v. Comm'r of Soc. Sec., 30 F. App'x 542, 547-48 (6th Cir. Mar. 4, 2002). Here, the
ALJ articulated just how the record evidence supports the determination that plaintiff could
perform sedentary work as defined in the regulations. According to the regulatory
definition,
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.
20 C.F.R. § 416.967(a). Notably, while the ALJ did not specifically discuss the limitation
against using left-sided foot controls, jobs that require very little lifting but involve “sitting
most of the time with some pushing and pulling of arm of leg controls” are categorized as
light, not sedentary work. 20 C.F.R. § 416.967(b). The ALJ did recognize the examining
physicians’ observation of a limping gait and left leg weakness, and acknowledged that “[t]he
claimant can do limited prolonged walking and he has trouble with postural movements.”
(Tr. 17) These are presumably the limitations which, at the fifth step of the sequential
evaluation process, required the utilization of the grids as a framework for decisionmaking
rather than directing the outcome, but did not so erode the existing occupational base that

8

further vocational proof was required. (Tr. 20)2
In sum, the undersigned finds that the ALJ’s finding of plaintiff’s RFC is
supported by substantial evidence, and is not undermined by any failure to consider the
functional limitations identified by Drs. Azbell and Butcher.
Plaintiff next argues that the ALJ failed to properly develop the medical
record, in that he failed to order another consultative examination at government expense
despite his awareness that specialized medical evidence was needed to evaluate plaintiff’s
back impairment and that such evidence was not available from plaintiff’s back surgeon, due
to the expiration of the hospital’s record retention period. (See Tr. 232) However, while the
ALJ did express a desire to view the records of plaintiff’s 2000 back surgery (Tr. 42-44), it
cannot be said that, without such records, “the evidence as a whole [was] insufficient to
support a determination or decision on [plaintiff’s] claim,” 20 C.F.R. § 416.919a(b), so as to
require the ALJ to purchase another consultative examination. Despite plaintiff’s near total
failure to produce evidence supporting his disability claim, the medical evidence of record
(including the results of one consultative examination already purchased by the government)
is sufficient to gauge plaintiff’s exertional and nonexertional limitations, and the record as a
whole amply supports the conclusion that the extent of limitation he subjectively alleges is
not fully credible. (Tr. 17-18) Indeed, plaintiff does not take issue with the ALJ’s credibility
2

The ALJ found that,

If the claimant had the residual functional capacity to perform the full range of
sedentary work, considering the claimant’s age, education, and work experience, a
finding of “not disabled” would be directed by Medical-Vocational Rule 201.28.
However, any additional limitations have little or no effect on the occupational base
of unskilled sedentary work. A finding of “not disabled” is therefore appropriate
under the framework of this rule.

9

determination. (See Docket Entry No. 16 at 5) Moreover, while plaintiff claims that “ALJ
Evans himself stated at the hearing that, if Mr. Nash’s back surgery were as extensive as
reported, Mr. Nash’s impairments would be severe enough that a finding of disability would
result” (id. at 7), the hearing transcript in fact reveals no such statement by the ALJ. Rather,
it is clear that the ALJ merely wanted to see if plaintiff’s recollection of the surgery was
accurate (Tr. 42-44), a curiosity that is of no moment in view of the well supported
determination of plaintiff’s RFC. Accordingly, plaintiff’s argument on this issue is without
merit.
IV. Recommendation
In light of the foregoing, the Magistrate Judge recommends that plaintiff’s
motion for judgment on the administrative record be DENIED, and that the decision of the
SSA be AFFIRMED.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any
party opposing said objections shall have fourteen (14) days from receipt of any objections
filed in which to file any responses to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985);
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)(en banc).
ENTERED this 11th day of August, 2015.

s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE
10