Beeler v. Colvin

Filing 19

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 8/8/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
RHONDA J. BEELER,

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Plaintiff,
v.
CAROLYN W. COLVIN
Acting Commissioner of
Social Security,
Defendant.

Case No. 2:14-cv-00108
Judge Sharp

MEMORANDUM
Pending before the Court is Plaintiff’s Motion for Judgment on the Administrative Record
(Docket Entry No. 16). The motion has been fully briefed by the parties.
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the
final decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s
claim for Supplemental Security Income (“SSI”), as provided by the Social Security Act (“the
Act”). Upon review of the administrative record as a whole and consideration of the parties’
filings, the Court finds that the Commissioner’s determination that Plaintiff is not disabled under
the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g).
Plaintiff’s motion will be denied.
I. INTRODUCTION
Plaintiff filed an application for SSI on February 14, 2012, alleging a disability onset date
of September 20, 2005.

The claim was initially denied on October 10, 2011, and upon

reconsideration on December 22, 2011. Plaintiff had an initial hearing before an Administrative
Law Judge (“ALJ”) on June 11, 2013. On July 26, 2013, the ALJ issued a decision denying her

1

claim. Plaintiff timely filed an appeal with the Appeals Council, which issued a written notice of
denial on October 1, 2013, thereby making the ALJ’s decision the final decision of the
Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction. 42
U.S.C. § 405(g).1
II. THE ALJ FIDNINGS
The ALJ issued an unfavorable decision on July 26, 2013. (AR pp. 53-60). Based upon
the record, the ALJ made the following enumerated findings:
1.

The claimant has not engaged in substantial gainful activity since May 12, 2011,
the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severed impairments: residuals of multiple
fractures from a motor vehicular accident; status post multiple surgeries; nerve
damage to upper left extremity; obesity; panic disorder with agoraphobia; major
depressive disorder; learning disorder, not otherwise specified; posttraumatic
stress disorder; bipolar disorder, not otherwise specified; and substance abuse in
remission (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 light work as defined in
20 CFR 416.967(b), except she is unable to climb ladders, ropes, and scaffolds.
She is only frequently able to perform other postural activities. The claimant is
unable to reach above shoulder level with her left arm. She is only occasionally
able to handle, finger, feel, push, or pull with her left arm. She is able to
understand, remember, and carry out simple instructions but is limited to work
requiring infrequent changes in work setting and infrequent interaction with
public.

5.

The claimant has no past relevant work (20 CFR 416.965).

6.

The claimant was born on August 9, 1973 and was 37 years old, which is
defined as a younger individual age 18-49, on the date the application was filed
(20 CFR 416.963).

1

The Plaintiff previously received supplemental security income benefits from September 28, 2005
through October 2, 2008, at which time authorities incarcerated her and her benefits ceased.
2

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 an issue because the claimant does not have past
relevant work (20 CFR 416.968).

9.

Considering the claimants 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 May 12, 2011, the date the application was filed (20 CFR 416.920
(g)).

(AR pp. 53-60).
III. REVIEW OF THE RECORD
The following summary of the evidence of record is taken from Plaintiff’s brief, Docket
Entry No. 17 at pp. 2-9:
Rhonda Beeler is a 42 year old woman with a 10th grade education. On July 24,
2008, Rhonda Beeler was approved for disability based on severe impairments of
fractures of the limbs and spine, permanent nerve damage to her left hand, and
low I.Q. resulting in ability to perform sedentary work with only occasional
stooping, ability to perform simple tasks, and a limited ability to work
independently and deal with work stress. (Tr. 93-101). Ms. Beeler has not had
significant improvement since that date. She has had surgery for nonunion of her
femur and humerus, she continues to have nerve damage in her right hand, her
low I.Q. is unchanged and her depression, PTSD, anxiety and bipolar condition
have worsened.
PHYSICAL IMPAIRMENTS
On September 21, 2005, Ms. Beeler was seen at University of Tennessee
Memorial Hospital. Orthopedic injuries included right clavicular shaft fracture,
right both-arm forearm fracture, left scapular body fracture, left humerus fracture,
left ulnar fracture, bilateral femoral shaft fracture, T4-6 spinous process fractures,
and L1-5 right transverse process fractures. Associates injuries included bilateral
pulmonary contusions, multiple rib fractures, renal contusion, and splenic
laceration. She was initially intubated and not following commands. She
underwent several surgeries and had a femoral non-union that was grafted in May
2006. In February 2007, she continued to have pain at the non-union area and at
the area of the knee. She had some catching of the locking screw when she moved
her knee. Radiographs showed some bridging boning anteriorly but still lucency
at the fracture site was visible. Locking screws looked intact. Dr. Scott Smith
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noted no improvement at that time. He gave options including removing the
locking screws, living with the problem using a cane or crutches and modifying
activity, and continuing her on Tramadol 15 mg two pills every six hours as he
did not plan to do long-term narcotics. Repeat surgery would involve bone
grafting. (Tr. 251-265).
Electromyography and nerve conduction studies dated April 13, 2006 reveal
severe subacute incomplete involvement of the left radial nerve distal to the
innervation of the triceps muscle with good active reinnervation occurring in the
brachial radialis, extensor digitorum communis and extensor indices muscles,
severe chronic incomplete involvement of the median nerve distal to the
innervation of the flexor carpi radialis and pronator teres muscles with
reinnervation being complete in the abductor pollicis brevis and flexor pollicis
longus muscles, severe chronic incomplete involvement of the ulnar nerve in the
forearm with reinnervation acute complete involvement of the ulnar motor fibers
innervating the first dorsal interosseous muscle in the forearm with no active
motor unit potentials present in that muscle. (Tr. 269-271, 293-296).
In January 2008, she was seen at Nashville General Hospital with left arm pain
status post motor vehicle accident. She reported a history of 5 ORIF surgeries to
her right hip, right arm, left arm, both upper and lower, and her right leg. She had
non-union of both arms and legs. In June 2007, she was involved in a second
motor vehicle accident and disrupted the healing process and loosened the
hardware even more. She had been incarcerated since the summer of 2007. She
had not been smoking or drinking since she had been in prison. She did not have
any pain reported in January 2008 but it was difficult for her to use her hand and
she had a lot of numbness and tingling in her hand. She had a history of heart
murmur, depression, anxiety, neuropathic pain secondary to injury trauma and
chronic pain secondary to trauma. Medications included Celexa, Buspar,
Ibuprofen, Neurontin, Ibuprofen and Ultram. On January 23, 2008, Dr. Limbird
performed a revision fixation of the left humerus. Ms. Beeler was placed in a sling
and discharged on Percocet and Morphine. (Tr. 297-330).
On December 10, 2008, Dr. Thomas Limbird admitted Ms. Beeler to Nashville
General Hospital for repair of a right femoral nonunion and a left humeral
nonunion. (Tr. 293). In December 2009, she returned to Nashville General
Hospital for left radial nerve palsy status post motor vehicle accident resulting in
left humerus fracture. She had paralysis in the lower extremity secondary to nerve
damage. She was unable to make a complete fist secondary to nerve damage.
Occupational therapy was ordered twice weekly for two to four weeks. (Tr. 286292).
On August 5, 2009, documentation from Tennessee Department of Corrections
noted that Plaintiff was restricted to sedentary work only with lifting with the
right hand only. No lifting with the left arm was allowed. No activity involving
potentially dangerous machinery or equipment was allowed. She was assessed
4

with orthopedic disorder of the right leg and left arm, neurologic disorder of the
left arm, hyperlipidemia and multiple fractures. (Tr. 359-360).
On May 25, 2011, providers at the Health department noted that Ms. Beeler had
chronic pain. (Tr. 1060). On March 14, 2012, the Health Department noted Ms.
Beeler to have hypertension, obesity, neuropathy and low Vitamin D levels. (Tr.
1099).
On June 23, 2012, Ms. Beeler fell on her outstretched arm and injured her left
wrist. She was noted to have many orthopedic injuries. (Tr. 1106-1107).
On January 10, 2014, Ms. Beeler had a right ankle fracture that was treated at
Cumberland Medical Center. She fell and fractured her ankle and had to have
surgery, open reduction and internal fixation. During her hospitalization, it was
realized that she had multiple fractures, not during that fall, but during previous
falls, and the possibility of osteoporosis of unknown etiology. She was told by Dr.
Hoover that it looked like her bones were older than a 40-year-old’s bones. She
was found to have a tri malleolar right ankle fracture for which Dr. Potter was
consulted and she was admitted to the hospital for further management. Loss of
range of motion was noted in her right hip and x-ray revealed a displaced
bimalleolar ankle fracture with a Weber C type fracture of the fibula. The
impression was displaced bimalleolar right ankle fracture; history of polytrauma
multi-fractures; and chronic non-union right proximal femur. Chest x-ray revealed
old fracture right clavicle. She was assessed with right ankle fracture, bipolar
disorder, hyponatremia, hypokalemia and tobacco abuse. She had IV pain
medicine including Demerol and medications during her stay for pain. After
surgery, she did well. She was alert and oriented. Vital signs were stable at the
time of discharge. She required DEXA scan sometime before she left. She had an
appointment to follow up with orthopedics. Her discharge medications included
Divalproex Sodium, Gabapentin, Sertraline HCl, Quetiapine Fumarate, Valproic
Acid, and Hydrocodone/APAP. (Tr. 9-37).
MENTAL IMPAIRMENTS
On May 11, 2011, Ms. Beeler was seen at Volunteer Behavioral Health Services
(VBHCS). She reported panic attacks which occurred once or twice a week with
the following symptoms: rapid heartbeat, trembling, shortness of breath,
smothering feeling, nausea, light headedness, fear of losing control and hot
flashes. She only went out when she had to due to fear of becoming anxious. She
reported depression which started four years earlier. Most days she had
depression, loss of interest, concentration problems, feelings of worthlessness,
hopelessness, low self-esteem, low energy, and excessive guilt feelings. She
would sleep a lot. Depression caused her to avoid doing things, isolating even
from family, getting angry easily, and causing relationship problems with her
family. She was diagnosed with panic disorder with agoraphobia and major
depressive disorder, recurrent, moderate. A GAF of 50 was assigned. (Tr. 11681208).
5

On May 18, 2011, she returned to VBHCS. Since being incarcerated, she had
been on Buspar and Zoloft. When she left prison, she was advised to contact
VBHCS. She had been taking Ultram as well, and recently had a reaction which
sounded like a mild version of serotonin syndrome. She committed to stay in
recovery with no benzodiazepines. She was amenable to therapy. She agreed that
she would obtain Neurontin from her PCP. She had extensive nerve damage from
her vehicle accident. She was assessed with major depressive disorder, recurrent,
moderate, panic disorder with agoraphobia and a GAF of 50. Her medications
were continued unchanged. (Tr. 1168-1208). On May 25, 2011, she reported
depression with the same continuing symptoms. (Tr. 1172-1174).
On February 24, 2012, she was discharged from Volunteer Behavioral Health
Care Center due to lack of contact. A diagnosis of major depressive disorder,
recurrent, moderate and panic disorder with agoraphobia and a GAF of 50 were
noted. (Tr. 1211).
On September 12, 2012, Ms. Beeler returned to VBHCS wanting her mood to
improve and her panic attacks to stop. She reported depression and anxiety. She
was tired all of the time with no energy. She cried a lot. She would sit in her
bedroom which had no windows. She had gained weight of 45 pounds over the
past year. She reported feeling this way for a year. She came for therapy, but she
did not return and she went off her medication. She reported doing reasonably
well until she stopped coming to Volunteer Behavioral Health Care Center. She
reported her memory was impaired and she had the inability to complete
sentences. She reported getting nauseated, muscle tension, dizziness, light
headedness and weakness. She had panic attacks two to three times per month.
She was scared to drive a car, especially in the rain. She had panic attacks when
her father would fuss at her. She felt like a prisoner in her own room. She feared
having panic attacks in front of others. She had panic attacks in public where she
felt like she had to get out of a place. This was occurring several times per month.
The usual duration was 15 to 30 minutes. She was sleeping in excess of 12 hours
daily. She reported no drug usage. Deep breathing and relaxation exercises were
taught and she was advised to identify and use thought changing skills and journal
three times a week. Her current GAF was 50. She was diagnosed with major
depressive disorder, recurrent, moderate and panic disorder with agoraphobia. (Tr.
1213-1225).
On October 9, 2012, when she returned to VBHCS, she reported that she sees
shadows and she reported that she has periods of time of a week or longer in a
severe “up” state with racing thoughts and insomnia followed by weeks of
depression where she won’t get out of bed and feels drained. At this time, she was
being seen by her primary care physician at the health department where she was
treated for blood pressure, cholesterol, and nerve damage to the left arm. She was
taking Naproxen and Neurontin. On exam, her affect was constricted. Her mood
was dysphonic and anxious. She exhibited blocking and derailment, impaired
memory, impaired concentration, and impaired attention. She agreed to a case
management referral and therapy services and trials of Zoloft and Valproic Acid.
6

She was diagnosed with major depressive disorder, recurrent, moderate and panic
disorder with agoraphobia. A GAF of 50 was assigned. (Tr. 1228).
On October 9, 2012, Ms. Beeler returned to VBHCS with increased depression.
She had previously taken Zoloft, Paxil, Wellbutrin, and Buspar. She reported that
Wellbutrin gave her headaches. She reported she had gotten out of jail in May of
the previous year. She had broken her left wrist and had previously broken arms
on both sides. She reported that her bones break easily. She had agreed to start
case management services. She reported that she occasionally hears and sees
shadows. She has frequent dreams about her accident. She reported that her father
treats her like a 15 year old. She had no alcohol or drug abuse noted. She was on
parole until 2014. She reported that prior to her accident she was a polysubstance
abuser, but THC dependent. (Tr. 1229-1230).
On November 6, 2012, Ms. Beeler returned to VBHCS due to anxiety. She
reported her depression was much better, but her mood swings were not. She still
had racing thoughts, jitters, and trembling hands. Her affect was constricted. Her
speech was pressured. Her mood was anxious, mixed and dysphoric. Racing
thoughts and flight of ideas were noted. Memory, concentration and attention
were impaired. Supportive therapy was given. Lithium Carbonate 300 mg three
times a day was started to decrease mood swings. She was diagnosed with bipolar
disorder nos and agoraphobia with panic disorder. (Tr. 1233-1235).
She attended therapy on January 30, 2013. She was manic and talking non-stop
throughout the session. She had difficulty concentrating. She was depressed and
not sleeping well at all. Medicine was not helping like it was in the beginning.
She reported being forgetful and having headaches. (Tr. 1250-1251).
On February 1, 2013, she went to VBHCS due to anxiety. She reported depression
rated a 7 of 10 and mood swings an 8 of 10. She felt that Lithium was helping
more than Depakote. Abilify was added to her medications for mood swings.
Trazodone was prescribed for sleep. She was diagnosed with bipolar disorder nos
and panic disorder wit agoraphobia. A GAF of 50 was assigned. (Tr. 1233-1235).
On April 9, 2013, Ms. Beeler returned to VBHCS and reported continued anxiety
and mood swings. She stopped taking Lithium Carbonate because it made her feel
strange. She felt Abilify helped control her mood better. She was diagnosed with
bipolar disorder nos and panic disorder with agoraphobia. A GAF of 50 was
assigned. (Tr. 1261-1263).
On May 7, 2013, she went to VBHCS. She had not filled Valproic filled due to a
mix up. She had more depression and anxiety. She continued to have increased
anxiety and mood swings. Zoloft and Trazodone were prescribed. Her diagnosis
was unchanged. (Tr. 1268).

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IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court are: (i) whether the decision of the Commissioner is supported by
substantial evidence; and (ii) whether the Commissioner made any legal errors in the process of
reaching the decision. 42 U.S.C. § 405(g). See Richardson v. Perales, 402 U.S. 389, 401, 91 S.
Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining substantial evidence standard in
context of Social Security cases); Kyle v. Comm’r Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010);
Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
Substantial evidence has been defined as “more than a mere scintilla” and “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L.
Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). The
Commissioner’s decision must be affirmed if it is supported by substantial evidence, “even if
there is substantial evidence in the record that would have supported an opposite conclusion.”
Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003);
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999)).
The Court must examine the entire record to determine if the Commissioner’s findings
are supported by substantial evidence. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991).
A reviewing court may not try the case de novo, resolve conflicts in evidence, or decide
questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers
v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit

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findings and final determination unless the record as a whole is without substantial evidence to
support the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing her 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 asserted impairment(s) must be demonstrated by medically

acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 423(d)(3) and
1382c(a)(3)(D); 20 CFR §§ 404.1512(a), (c), 404.1513(d). “Substantial gainful activity” not only
includes previous work performed by the claimant, but also, considering the claimant’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 the
claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired
if she applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s
alleged disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that she is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 CFR §§ 404.1520(b), 416.920(b).
Second, the claimant must show that she suffers from a severe impairment that meets the twelve

9

month durational requirement. 20 CFR §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has
satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless
of age, education or work experience, if the impairment at issue either appears on the regulatory
list of impairments that are of sufficient severity as to prevent any gainful employment or equals
a listed impairment. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 CFR
§§ 404.1520(d), 416.920(d). A claimant is not required to show the existence of a listed
impairment in order to be found disabled, but such a showing results in an automatic finding of
disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122
(6th Cir. 1989).
If the claimant’s impairment does not render her presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to her past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [her] limitations.” 20 CFR § 404.1545(a)(1). In determining a claimant’s RFC, for
purposes of the analysis required at steps four and five, the ALJ 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). At the fourth step, the claimant has the burden of proving an
inability to perform past relevant work or proving that a particular past job should not be
considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot
satisfy the burden at the fourth step, disability benefits must be denied because the claimant is
not disabled. Combs, supra.

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If a claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quotingWalters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). In order to rebut a prima facie case, the
Commissioner must come forward with proof of the existence of other jobs a claimant can
perform. Longworth, 402 F.3d at 595. See also Kirk v. Sec’y of Health & Human Servs., 667
F.2d 524, 528 (6th Cir. 1981), cert. denied, 461 U.S. 957, 103 S. Ct. 2428, 77 L. Ed. 2d 1315
(1983) (upholding the validity of the medical-vocational guidelines grid as a means for the
Commissioner of carrying his burden under appropriate circumstances). Even if the claimant’s
impairments prevent the claimant from doing past relevant work, if other work exists in
significant numbers in the national economy that the claimant can perform, the claimant is not
disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009). See also Tyra v.
Sec’y of Health & Human Servs., 896 F.2d 1024, 1028-29 (6th Cir. 1990); Farris v. Sec’y of
Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir. 1985); Mowery v. Heckler, 771 F.2d 966,
969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the five-step sequential
evaluation process, the claim is not reviewed further. 20 CFR § 404.1520(a)(4). See also Higgs v.
Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the
evaluative process is appropriate in some circumstances).

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C. Plaintiff’s Assertion of Error
Plaintiff argues that the ALJ erred (1) in finding Beeler had significant improvement
since she was initially found disabled; and (2) in his evaluation of Beeler’s mental restrictions.
(Docket Entry No. 17 at pp. 14-18). Plaintiff contends that the Commissioner’s decision should
be “reversed and benefits should be granted or in the alternative, [] be remanded pursuant to
Sentence 4.” (Id. at 5).
Sentence four of 42 U.S.C. § 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
[Commissioner’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 v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
Additionally, a court can reverse the decision and immediately award benefits if all essential
factual issues have been resolved and the record adequately establishes a claimant’s entitlement
to benefits. Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala,
25 F.3d 316, 318 (1994). Plaintiff’s assertion of error is addressed below.
1. The ALJ erred in finding Beeler had significant improvement since she was initially found
disabled
Plaintiff argues that the ALJ erred in finding that she has improved since the last prior
ALJ decision.2 (Docket Entry No. 17 at 14). Plaintiff asserts the doctrine of res judicata requires

2

That decision was issued by an ALJ in 2008 (Tr. 93). In that decision, Plaintiff was found “disabled”
because there were no “other” jobs that she could perform that existed in significant numbers in the
national economy (Tr. 100). This was based on a residual functional capacity finding limiting Plaintiff to
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that the ALJ adopt the findings in a prior decision unless there has been substantial change since
the prior decision. (Id.). Specifically, Plaintiff asserts that the ALJ is “bound by the findings of
a claimants residual functional capacity.” (Id.).3 Plaintiff argues,
The ALJ found Rhonda Beeler disabled in the initial decision, finding that she had
restrictions that prevented less than sedentary work and that she had a low I.Q.
Ms. Beeler’s IQ has not changed. The initial ALJ decision gives full credibility to
the report of Mark Loftis (a psychologist) in finding that Ms. Beeler has a low IQ
and is restricted to simple tasks. (Tr. 98). The Administrative Law Judge in the
more recent decision rejected the finding of the intimal ALJ of low IQ noting that
he did not find support for that in the prior administrative law judge decision and
because Dr. Deborah Morton (a medical doctor who is not a qualified
psychological expert) opined that Ms. Beeler was of average intelligence, there
was a significant change in the record. (Tr. 53). An IQ does not significantly
change and the ALJ errs in finding that the low IQ is no longer a severe
impairment.
Additionally, Ms. Beeler has not shown significant improvement in her physical
condition that justifies a reopening of the prior decision by the ALJ.
***
Ms. Beeler’s disability decision was terminated not because she had had medical
improvement, but rather because she was incarcerated.
***
At the time of the hearing, Ms. Beeler testified that she continues to have
significant nerve damage in her left arm. She has no muscle mass and she still
cannot make a fist or bend it. (Tr. 74). This testimony is supported by the
assessment of Dr. Deborah Morton. (Tr. 1021). Her right lower arm has a rod and
if she bumps it on anything it knots up. Her orthopedic doctor told her that the rod
needed to come out because it was getting inflammation on it. (Tr. 75).
only sedentary type work, with occasional stooping and a limitation to work that involved simple tasks
with a limited ability to work independently and to deal with workplace stress (Tr. 98).
Plaintiff was incarcerated in the Tennessee Prison for Women from August 2007 through May 2011 (Tr.
190). An individual is not eligible for SSI benefits for any month throughout which he or she was a
resident of a public institution. See 20 C.F.R. §§ 416.201, 416.211. Plaintiff had to file the new
application upon release from prison if she wanted to receive SSI benefits.
3

Citing Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997), Plaintiff argues that the ALJ
cannot “reexamine or predetermine the findings of a claimant’s residential functional capacity or other
issues previously determined in the absence of new and additional material evidence or changed
circumstances.” (Id.).
13

(Id. at pp. 14-16).
“Absent evidence of an improvement in a claimant’s condition, a subsequent ALJ is
bound by the findings of a previous ALJ.” Drummond v. Comm’r of Soc. Sec., 126 F.3d 837,
842 (6th Cir. 1997). An individual’s residual functional capacity can change during a subsequent
adjudicated period when more recent evidence shows improvement. See Rudd v. Comm’r of Soc.
Sec., 531 F. App’x 719, 724-25 (6th Cir. 2013) (citing Drummond, 126 F.3d at 842).
In making his finding, the ALJ gave consideration to the legal standard in Drummond, in
that he “may not make a different finding in adjudicating a subsequent disability claim unless
new and additional evidence or changed circumstances provide a basis for finding different.”
(AR at p. 56). The ALJ, however, found that the medical evidence showed Plaintiff’s medical
condition had improved since the prior ALJ decision; and Plaintiff “agreed in her testimony that
her condition had, ‘to a certain extent.’” (Id.). Moreover, the ALJ found that Plaintiff’s mental
condition appeared “more precisely defined since her July 2008 decision listed only low IQ as a
severe mental impairment.” (Id.). Because of these changes, the ALJ did not keep the same
residential functional capacity from the prior decision. The ALJ stated, [d]espite many barriers
in her body, mind, and elsewhere that may discourage her, based on the record as a whole,
including the opportunity to interact with [Plaintiff]… I conclude the claimant is able to perform
the residual functional capacity outline above.” (Id.). The ALJ also gave significant weight to
the opinion of Dr. Knox-Carter, who was privy to the medical record, including the prior ALJ
decision.
If the ALJ’s findings are supported by substantial evidence in the record, his decision is
conclusive and must be affirmed. Warner v. Comm. Of Soc. Sec., 375 F.3d 387, 390 (6th Cir.

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2004). The Court therefore finds that substantial evidence supports the ALJ’s determination that
Plaintiff had significant improvement since she was initially found disabled in 2008.
2. The ALJ erred in the evaluation of Beeler’s mental restrictions
Plaintiff further claims the ALJ erred in evaluating her mental restrictions by failing to
find that she is significantly restricted by her mental impairments. (Docket Entry No. 17 at 16).
Defendant counters,
Plaintiff’s argument is contrary to the ALJ’s actual findings. The ALJ specifically
found that Plaintiff’s severe impairment that included these mental impairments:
panic disorder with agoraphobia; major depressive disorder; learning disorder, not
otherwise specified; posttraumatic stress disorder; bipolar disorder, not otherwise
specified; and, substance abuse in remission (Tr. 53). The ALJ properly evaluated
the severity of these impairments and found them severe (Tr. 53). A “severe”
impairment is one that more than minimally affects the ability to work. See 20
C.F.R. § 416.921 (severe impairments).
The ALJ’s residual functional capacity also reflects the mental impairments that
the ALJ found severe, while incorporating only those limitations that were found
credible (Tr. 55).
***
Here, the ALJ found Plaintiff not fully credible for several reasons. The ALJ
properly evaluated Plaintiff’s credibility in a manner that was consistent with
SSA’s regulations and policies. See 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p.
***
The ALJ’s adverse credibility finding that she was “not entirely credible” (Tr. 56)
was based on several factors. These included the objective evidence from the
examination with Dr. Morton (Tr. 57); her course of treatment after leaving the
Department of Corrections (Tr. 57-58); her starting and then ceasing mental
health treatment (Tr. 58), her misconceptions about the work requirements
imposed by employers concerning her education (Tr. 58); conflicts in her daily
activities (Tr. 58); and her willingness to be active in the community (Tr. 58-59).
(Docket Entry No. 18 at pp. 9-11).

15

According to the ALJ, Plaintiff’s mental impairments, considered singly and in
combination, do not meet or medically equal the criteria of Listings 12.02, 12.04, 12.06, or
12.09. (AR at p. 54). Plaintiff bears the burden of proving that her impairments meet or equal a
listed impairment. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967
(1990). To meet this burden, Plaintiff must put forth evidence establishing that she meets all of a
listing’s criteria. Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003)
(citing 20 C.F.R. § 416.924(a). Plaintiff may also demonstrate disability by establishing that her
‘impairments are equivalent to a listed impairment by presenting ‘medical findings equal in
severity to all the criteria for the one most similar listed impairment.’” Foster v. Halter, 279 F.3d
348, 355 (6th Cir. 2001) (quoting Sullivan, 493 U.S. at 531). Regardless, “[t]his decision must
be based solely on medical evidence supported by acceptable clinical and diagnostic techniques.”
Land v. Sec’y of H.H.S., 814 F.2d 241, 245 (6th Cir. 1986) (citing 20 C.F.R. § 404.1526(b)).
Here, ALJ found that Plaintiff has not met her burden of establishing that her mental
impairments meet or are medically equal to a listed impairment. Subsequently, the ALJ found
that despite the mental barriers, Plaintiff is still able to perform the residual functional capacity,
which states as to her mental performance, “[s]he is able to understand, remember, and carry out
simple instructions but is limited to work requiring infrequent changes in work setting and
infrequent interaction with public.” (AR at p. 55).
Plaintiff further suggests that the ALJ erred in substituting his judgment for that of a
treating psychologist. (Docket Entry No. 17 at pp. 17-18). Plaintiff argues that the ALJ rejected
a treatment report because she had a gap in treatment  and the ALJ believed she only returned
because of her ALJ hearing. (Id.).

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As to this issue, the ALJ stated in his report the following:
The claimant has received treatment for mental impairment . . . She went to
Volunteer Behavioral Health Care System on May 11, 2011, May 18, 2011, and
May 25, 2011, shortly after her release from prison and the day after she filed her
disability application. She was diagnosed with major depressive disorder,
recurrent, moderate, and panic disorder with agoraphobia.
She did not return, however, and was discharged by the provider in February 2012
due to failure to attend her appointments. She presented again at Volunteer
Behavioral Health Care System after more than a year on September 12, 2012,
October 9, 2012, and November 2012, but then stopped once against until January
30, 2013, and February 1, 2013. Preceding he hearing, she came back on April 9,
2013 and May 7, 2013. Her diagnoses did not change throughout.

***
While the claimant’s starts and stops in mental health treatment raise questions . .
. [and] the claimant’s activities show less mental restriction than she alleges, the
record clearly reflects some level of mental retardation.

(AR at p. 58). As the record indicates, although the ALJ did question the pattern of Plaintiff’s
mental health treatment, he acknowledged there was a level of mental retardation. And contrary
to Plaintiff’s assertion, the ALJ did not err in using his own judgment based on the record. The
residual functional capacity does not need to be based on a particular medical opinion. See
Brown v. Comm'r of Soc. Sec., No. 14-6299, 2015 WL 2166706, at *3 (6th Cir. May 8, 2015).
The residual functional capacity does not need to correspond to a physician’s opinion because
the Commissioner has the final authority to make determinations or decisions on disability. See
Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 724-25 (6th Cir. 2013).
Here, the ALJ appears to have taken the entire record into account before rendering his
decision. Consequently, the Court finds that substantial evidence supports the ALJ’s
determination of Plaintiff’s mental restrictions.

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V. CONCLUSION
The Court concludes that the findings of the ALJ are supported by substantial evidence
on the record as a whole, and are free from legal error. With such support, the ALJ’s decision
must stand, even if the record also contains substantial evidence that would support the opposite
conclusion. E.g., Longworth c. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).
For all of the reasons stated, the Court will deny Plaintiff’s Motion for Judgment on the
Administrative Record (Docket Entry No. 16).
An appropriate Order shall be entered.

_________________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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