Threet v. Social Security Administration
Filing
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MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 10/17/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
DEBBIE SHIRLENE THREET,
Plaintiff,
v.
CAROLYN W. COLVIN
Acting Commissioner of
Social Security,
Defendant.
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Case No. 2:15-cv-00040
Judge Sharp
MEMORANDUM
Pending before the Court is Plaintiff’s Motion for Judgment on the Administrative Record
(Docket Entry No. 14). 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 disability insurance under Title II and 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 Title II and Title XVI benefits on June 21, 2012, alleging
a disability onset date of December 31, 2010. An Administrative Law Judge (“ALJ”) signed a
Notice of Decision-Unfavorable, which was mailed to Plaintiff on March 7, 2014. Plaintiff
timely filed an appeal with the Appeals Council, which issued a written notice of denial on June
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2, 2015, 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).
II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on March 7, 2014. (AR p. 10). Based upon the
record, the ALJ made the following enumerated findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through December 31, 2010.
2.
The claimant has not engaged in substantial gainful activity since December 31,
2010, the amended alleged onset date (20 CFR 404.1571 et seq. and 416.971 et
seq.).
3.
The claimant has the following severed impairments: mild deformity of the right
wrist; a dysthymic disorder; and an anxiety disorder, not otherwise specified (20
CFR 404.1520(c) and 416.920(c)).
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 in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5.
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity lift and/or carry 20 pounds
occasionally and 10 pounds frequently; stand and/or walk for up to 6 hours out of
an8-hour workday; sit for up to 6 hours out of an 8-hour day; occasionally climb
ladders, ropes, or scaffolds; frequently climb ramps or stairs; frequently balance,
stoop, kneel, crouch, or crawl; and frequently handle and finger with the right
upper extremity. She is limited to occasional interaction with co-workers and
supervisors; no interaction with the general public; and simple and detailed tasks.
6.
The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
7.
The claimant was born on November 27, 1962, and was a younger individual age
18-49, on the amended alleged disability onset date. The claimant subsequently
changed age categories to an individual closely approaching advanced age (20
CFR 404.1563 and 416.963).
8.
The claimant has at least a high school education ad is able to communicate in
English (20 CFR 404.1564 and 416.964).
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9.
Transferability of job 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).
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 can perform (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).
11.
The claimant has not been under a disability, as defined in the Social Security
Act, from December 31, 2010, the amended alleged onset date, through the date
of this decision (20 CFR 404.1520(f) and 416.920(f)).
(AR pp. 15-26).
III. REVIEW OF THE RECORD
The following summary of the evidence of record is taken from Plaintiff’s brief, Docket
Entry No. 14-1 at pp. 1-2:
Debbie S. Threet, Plaintiff-Appellant, is a 53 year old claimant who was injured
in a car accident in 2004, where she suffered from a severely fractured forearm as
well as hip and back pain. (Exhibit 2F, University of Tennessee Medical
Records). She continued to suffer from severe back pain consistent with her
objective findings of a positive straight leg raise bilaterally with lower extremity
swelling on multiple occasions (Exhibit 14F Diligent Medical Care records).
On August 25, 2012, Dr. Robert Howell, consultative physician examiner for
DDS, (Exhibit 8F), examined the claimant and determined that she had a 10lb
lifting restriction and opined that “she should probably avoid work that would
require her to bend over, stoop or crawl”. In addition, he stated “She may be well
suited for a very low impact or limited light duty labor jobs” and “she may be
suited for some sort of desk job.”
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
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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
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).
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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
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
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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.
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
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national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quoting Walters 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).
C. Plaintiff’s Assertion of Error
Plaintiff argues that the ALJ improperly evaluated the residual functional capacity
(“RFC”), and the RFC was not supported by substantial evidence. (Docket Entry No. 14-1).
Specifically, the issue postured by Plaintiff is whether the ALJ properly evaluated the opinion
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evidence. (Id.). Plaintiff contends that the Commissioner’s decision should be reversed, or in
the alternative, remanded for further consideration. (Id. at 6).
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).
As stated supra, here, the specific issue posed by Plaintiff is whether the ALJ properly
evaluated the opinion evidence in conjunction with the RFC. (Docket Entry No. 14-1 at 1).
Plaintiff contends the ALJ erroneously accepted the findings of the non-examining and nontreating state agency physician over the examining consultative physician, Robert Howell,
M.D..1 (Id. at pp. 4-5).
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Plaintiff further purports that new evidence was submitted into the record since “these non[-]examining
and non-treating physicians rendered their opinions, and the findings []the ALJ relied on [from the
consultants] had no benefit of the records past November 2012.” (Id. at 4). The record reflects that the
ALJ explicitly considered these additional medical records (Tr. 16, 24). These medical records show that
Plaintiff continued to retain full ranges of motion and her pain was controlled with medication (Tr. 16, 24,
478-79, 482-85).
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The residual functional capacity is the most an individual can still do despite the work
related limitations that arise from their impairments. See 20 C.F.R. §§ 404.1545, 416.945.
However, the residual functional capacity need only include those limitations that the ALJ found
credible. See, Poe v. Comm’r of Soc. Sec., 342 F.App’x 149, 155-56 (6th Cir. 2009)(citing 20 §
404.1545).
Here, The ALJ found the following regarding Plaintiff’s RFC:
. . . the claimant has the residual functional capacity lift and/or carry 20 pounds
occasionally and 10 pounds frequently; stand and/or walk for up to 6 hours out of
an8-hour workday; sit for up to 6 hours out of an 8-hour day; occasionally climb
ladders, ropes, or scaffolds; frequently climb ramps or stairs; frequently balance,
stoop, kneel, crouch, or crawl; and frequently handle and finger with the right
upper extremity. She is limited to occasional interaction with co-workers and
supervisors; no interaction with the general public; and simple and detailed tasks.
(AR at p. 20). The ALJ concluded that Plaintiff could perform other work existing in significant
numbers, including work as a housekeeper, a laundry folder, and a textile checker (Tr. 25).
Consequently, the ALJ found that Plaintiff was not disabled (Tr. 26).
In making the decision, the ALJ relied on medical opinions, Plaintiff’s medical treatment,
and the medical evidence (Tr. 16-24).
In August 2012, Stephen Hardison, M.A., and Carolyn
Valerio, Psy.D., performed a consultative evaluation and opined that Plaintiff had mild
limitations in performing simple tasks and making simple decisions, and moderate limitations in
performing detailed tasks and interacting with others (Tr. 452-555). Later that month, Robert
Howell, M.D., performed a consultative examination and opined that Plaintiff could lift 10
pounds continuously and sit, stand, and walk continuously for 8 hours (Tr. 457-60). Plaintiff
should probably avoid bending, stooping, and crawling (Tr. 460).
State agency medical
consultants reviewed the medical records and suggested that Plaintiff could perform a range of
detailed, medium work (Tr. 87-95, 120-30). The state consultants also opined Plaintiff could
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perform detailed, but not complex, instructions (Tr. 23, 87-89, 93-98, 123-24, 128-30). In
September 2012, Robert de la Torre, Psy.D., reviewed the records and opined that Plaintiff could
perform detailed tasks and would do better with things than people (Tr. 95). In November 2012,
Jeffrey Bryant, Ph.D., affirmed Dr. de la Torre’s opinion (Tr. 130).
As to Plaintiff’s physical residual capacity, the ALJ noted:
In determining the claimant’s physical residual functional capacity, some weight
has been given to the State agency medical consultants [], who indicated that the
claimant was capable of a range of medium work; however, in reconciling these
opinions with the claimant’s hearing testimony that she can lift only a gallon of
milk (i.e., 10 pounds), the undersigned has given the claimant the significant
benefit of the doubt in reducing the residual functional capacity to a range of light
work. Additionally, the limitation to frequent handling and fingering is based
upon the objective evidence of mild deformity of the right wrist.
Some weight has been given to the functional assessment articulated by the
physical consultative examiner, Dr. Howell, insofar as it is not inconsistent with a
finding that the claimant is limited to a range of light work. Specifically, Dr.
Howell assessed that the claimant could lift or carry 10 pounds continuously in an
8-hour workday [], which, standing alone, does not necessarily support a finding
that the claimant is limited to only sedentary work or is limited to a 10 pound
weight restriction . . . the undersigned gives little weight to any portion of the
opinion suggesting that the claimant is unable to perform any bending, stooping
or crawling, and/or is limited to a desk job or low impact or very light duty labor
job, as such portions of the opinion are overly restrictive and are inconsistent with
the findings upon examination and the objective medical evidence of record.
(AR at pp. 21-23) (emphasis in original).
The ALJ may rely on opinions from consulting doctors. See Brown v. Comm'r of Soc.
Sec., No. 14-1626, 2015 WL 163059, at *1 (6th Cir. Jan. 13, 2015) (“The ALJ gave ‘some
weight’ to the opinions of three consulting physicians…”). While all medical opinions are
evaluated as discussed in 20 C.F.R. § 404.1527, opinions by consulting or non-treating doctors
need not be evaluated in accordance with the treating physician rules outlined by the Sixth
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Circuit. See Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 730 (6th Cir. 2013) (citing 20
C.F.R. § 404.1527 and Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
The record reflects that the ALJ not did reject the opinion of Dr. Howell; rather, he gave
partial weight to the opinion while also giving some weight to the State agency medical
consultants. The Court finds that the ALJ demonstrated proper consideration of Dr. Howell’s
opinion. Moreover, the record indicates that the ALJ considered other factors, such as Plaintiff’s
allegations to the extent they were found credible and her retained level of functioning as
reflected by the evidence, as well as the medical evidence. Accordingly, the Court finds that
substantial evidence supports the ALJ’s determination as to Plaintiff’s residual functional
capacity.
V. CONCLUSION
In sum, 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. 14).
An appropriate Order shall be entered.
_________________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE
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