Taylor v. Social Security Administration

Filing 21

MEMORANDUM signed by District Judge Aleta A. Trauger on 2/15/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
STEVEN MICHAEL TAYLOR,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 3:13-cv-01344
Judge Trauger
Magistrate Judge Newbern

MEMORANDUM
Pending before the court is Plaintiff Steven Michael Taylor’s Motion for Judgment on the
Administrative Record (“Motion”) (Docket No. 11), filed with a Memorandum in Support
(Docket No. 12).

Defendant Commissioner of Social Security (“Commissioner”) filed a

Response in Opposition to Plaintiff’s Motion. (Docket No. 17.) Upon consideration of the
parties’ filings and the transcript of the administrative record (Docket No. 9),1 and for the
reasons given herein, the court will grant Plaintiff’s Motion (Docket No. 11) to the extent that the
case is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for consideration
under the appropriate burden of proof and in consideration of any new evidence.
I.

Introduction 

Taylor filed an application for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act on June 15, 2010 and Supplemental Security Income (“SSI”) under Title

1

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

1

XVI of the Act on June 25, 2010, alleging a disability onset of June 15, 2010, due to seizures.
(Tr. 177.) Taylor’s claim was denied at the initial and reconsideration stages of state agency
review. Taylor subsequently requested de novo review of his case by an Administrative Law
Judge (“ALJ”). The ALJ heard the case on June 22, 2012, when Taylor appeared with counsel
and gave testimony. (Tr. 63–85.) Testimony was also received from an impartial vocational
expert. At the conclusion of the hearing, the matter was taken under advisement until August 22,
2012, when the ALJ issued a written decision finding Taylor not disabled. (Tr. 20–30.) That
decision contains the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act through
June 30, 2012. 
2. The claimant has not engaged in substantial gainful activity since June 15, 2012, the
alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971 et seq.). 
3. The claimant has the following severe impairments: osteoarthritis of the shoulder,
osteoarthritis of the hips, degenerative disc disease, epilepsy/seizure disorder, status
post-remote brain injury, and history of alcohol abuse (20 C.F.R. 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 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926). 
5. After careful consideration of the entire record, … that the claimant has the residual
functional capacity to perform medium work as defined in 20 C.F.R. 404.1567(c) and
416.967(c) except that he can occasionally lift, push/pull, or carry up to 50 pounds;
sit, stand, and/or walk for up to six hours each; should avoid all hazards due to his
seizure disorder; can understand and carry out simple instructions; can maintain
concentration, persistence, and pace for simple tasks for two hours at a time; can
interact appropriately with others; and can adapt to infrequent changes.
6. The claimant is capable of performing past relevant work as a packer. This does not
require the performance of work-related activities precluded by the claimant’s
residual functional capacity (20 C.F.R. 404.1565 and 416.965).
7.

The claimant has not been under a disability, as defined in the Social Security Act,
from June 15, 2010, through the date of this decision (20 C.F.R. 404.1520(g) and
416.920(g).
2

(Tr. 22–25, 29–30.)
On October 10, 2013, the Appeals Council denied Taylor’s request for review of the
ALJ’s decision (Tr. 1–2), thereby rendering that decision the final decision of the SSA. This
civil action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g).
II.

Review of the Record

The following summary of the medical record is taken from the ALJ’s decision:
[T]reatment records from Logan Memorial Hospital document the
onset of the claimant’s seizure disorder in October 2006. Ex.
B12F, p.1. The claimant testified that this condition originated in
1971, when he suffered a brain injury (which required surgery) in
an automobile accident, but that his seizures did not materialize
until 2006.
In July 2010, the claimant’s neurologist, Dr. Walter Warren, issued
a letter concerning the claimant’s seizure disorder. Dr. Warren
stated that he began seeing the claimant in 2006, after his first
seizures. Ex. B1F, p. 1. Dr. Warren stated that EEGs performed in
2006 and 2008 were normal, but that an MRI confirmed a left
frontal craniotomy and front lobe scarring from the claimant’s
1971 accident. Id. Pertaining to the instant case, Dr. Warren
indicated that the claimant’s dosage of Dilantin, his anti-seizure
medication, had been fairly steady; he stated that some dosage
levels had been therapeutic while others had not. Id. Dr. Warren
stated that he had received phone calls from the claimant’s wife,
who made subjective reports of irrational and temperamental
behavior on the claimant’s part. Id. Dr. Warren stated that he had
not actually seen the claimant since July 2008, but he has tried to
refill the claimant’s medications while maintaining a record of the
claimant’s medical history by phone. Ex. B1F, p. 2. See also Ex.
B16F.
Subsequent treatment notes from Logan Memorial document the
claimant’s complaints in March 2011 of moderate back and hip
pain following a motor vehicle accident. Ex. B14F, pp. 1–6.
Lumbar spine x-rays revealed mild-to-moderate degenerative disc
disease, and hip x-rays revealed no acute abnormalities but
possible joint effusion. Id. No addition [sic] abnormalities were
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indicated. Id. In June 2011, the claimant presented to Logan
Memorial with complaints of having a seizure. Ex. B15F, pp. 1–3.
Treatment records note the claimant’s non-compliance with his
anti-seizure medication as well as his continued alcohol use; the
claimant was advised to take his medication as prescribed and to
avoid alcohol use. Id.
Two months later, in August 2011, the claimant presented to
Nashville General Hospital with complaints of bilateral shoulder
pain that intermittently radiated down the claimant’s arm. Ex.
B11F, p. 1. Abnormal x-rays revealed the presence of bilateral
osteoarthritis of the shoulders, characterized by stiffness and pain.
Id. The following month, September 2011, the claimant reported
pain of 4/10 at one appointment and 5/10 at another. Ex. B11F,
pp. 8, 10. In October 2011, the claimant reported pain of 3/10 and
stated that he had not been taking his Dilantin because he could not
afford it; at the same time, a physical therapy plan was developed,
whereby the claimant would attend four physical therapy sessions,
once every other week. Ex. B11F, pp. 12, 18. The claimant was
again instructed to abstain from consuming alcohol. Ex. B11F, p.
19. The claimant’s physical therapy notes indicate that he
generally tolerated treatment well; his shoulder strength increased
to 4/5 on the left and 4+/5 on the right, which [sic] pain of only
2/10. Ex. B11F, pp. 20–22. In mid-November 2011, the claimant
reported zero pain; however, non-compliance with medication and
continuing alcohol use were again noted, and the claimant was
advised accordingly. Ex. B11F, p. 26. In mid-December 2011, the
claimant reported that he had decreased the amount of beer he was
drinking; he was instructed to abstain completely from alcohol and
to practice perfect compliance with his prescribed treatment. Ex.
B11F, p. 28. In late December 2011, the claimant reported some
shoulder improvement following his physical therapy sessions.
Ex. B11F, pp. 30–31. A physical exam revealed somewhat
reduced forward flexion of the left shoulder, rotator cuff strength
of 4+/5 on the left and 5/5 on the right, no creitus, and only mild
tenderness around the AC joint. Id. The claimant was given an
injection for shoulder pain, and he was advised to return for more
physical therapy. Id. At a follow-up for his shoulder in February
2012, the claimant reported an increase in his range of motion and
a decrease in his pain level. Ex. B19F, pp. 1–3. An exam
confirmed that his range of motion had increased, and his shoulder
was no longer tender to palpation. Id. In mid-March 2012, the
claimant reported that he was still drinking a case or two of beer
per week, contrary to his doctors’ long-standing instructions to
abstain from alcohol consumption. Ex. B19F, p. 5. In late March
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2012, the claimant complained of shoulder and hip pain. Ex.
B19F, pp. 8–9. On exam, the claimant exhibited full and
symmetrical range of motion of the shoulder bilaterally, full rotator
cuff strength bilaterally, no crepitus, and some tenderness to
palpation. Id. Concerning his hips, there were no range of motion
issues, no tenderness, and no masses. Id. The claimant’s left
shoulder was noted to be improving, and his hip pain complaints
were assessed as “subjective discomfort.” Id. On May 8, 2012,
and EMG and nerve conduction study revealed only “mild” and
“minimal” abnormalities, with no evidence of radiculopathy or
plexopathy. Ex. B19F, p. 10. The next day, claimant complained
of 5/10 right hip pain, plus right shoulder pain; he reported that he
was still drinking, though he had reduced his alcohol intake. Ex.
B19F, p. 14. In late May 2012, abnormal imaging revealed
osteoarthritis of the left hip. Ex. B19F, pp. 17–18.
Dr. Lloyd Huang performed a consultative physical examination of
the claimant. Dr. Huang noted the claimant to have normal range
of motion of the cervical spine, shoulders, elbows, wrists, hips,
knees, and ankles, with somewhat reduced range of motion of the
lumbar spine. Ex. B2F, p. 2. The claimant also had normal grip
strength, full motor strength, normal gait, and negative straight leg
raise testing. Id. Dr. Huang stated that he was unable to determine
whether the claimant’s alcohol use played a role in his seizure
disorder, but he stated that, regardless, the claimant’s “functional
status may improve with abstinence from alcohol.” Ex. B2f, p. 3.
Senior Psychological Examiner Robert Doran, M.A., performed a
consultative psychological evaluation of the claimant. Mr. Doran
observed that the claimant walked, stood, and sat comfortably
without apparent difficulty. Ex. B3F, p. 1. He also noted that the
claimant’s speech was “slightly slurred” but “[o]therwise his
speech was clear and of moderate volume.” Id. As noted above,
the claimant reported that he performs considerable activities of
daily living. Ex. B3F, p. 2. The claimant also stated that he likes
to go fishing. Ex. B3F, p. 2. Concerning the mental status of the
exam portion of the claimant’s evaluation, Mr. Doran noted the
claimant’s mood to be “mildly” dysphoric with congruent affect.
Ex. B3F, p. 3. The claimant reported no hallucinations and no
suicidal or homicidal ideation. Id. He was noted to have fair
insight and intact impulse control. Id. Cognitively, the claimant
was aware of current events, performed serial seven subtractions,
and calculated multiplication and division problems. Id. However,
Mr. Doran stated, “It is my impression that [the claimant] did not
put forth his best efforts during the mental status portion of this
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evaluation.” Id. Mr. Doran determined that the claimant
functions, “at a minimum,” in the low average range. Id.

[T]here are no treatment records of record from the claimant’s
treating mental health care provider, Dr. Pradumna Singh.
(Tr. 25–27.)
III.

Conclusions of Law

A. Standard of Review
This court reviews the final decision of the SSA to determine whether substantial
evidence supports that agency’s findings and whether it applied the correct legal standards.
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016). Substantial evidence means
“‘more than a mere scintilla’ but less than a preponderance; substantial evidence is such ‘relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). In determining whether substantial
evidence supports the agency’s findings, a court must examine the record as a whole, “tak[ing]
into account whatever in the record fairly detracts from its weight.” Brooks v. Comm’r of Soc.
Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th
Cir. 1984)). The agency’s decision must stand if substantial evidence supports it, even if the
record contains evidence supporting the opposite conclusion. See Hernandez v. Comm’r of Soc.
Sec., 644 F. App’x 468, 473 (6th Cir. 2016 (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)).
Accordingly, this 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.
6

2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Where, however, an ALJ
fails to follow agency rules and regulations, the decision lacks the support of substantial
evidence, “even where the conclusion of the ALJ may be justified based upon the record.”
Miller, 811 F.3d at 833 (quoting Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir.
2014)).
B. The Five-Step Inquiry
The claimant bears the ultimate burden of establishing 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. § 423(d)(3). The SSA considers a
claimant’s case under a five-step 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 B 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.
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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.
Parks v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm’r of
Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. §§ 404.1520, 416.920. The claimant
bears the burden through step four of proving the existence and severity of the limitations her
impairments cause and the fact that she cannot perform past relevant work; however, at step five,
“the burden shifts to the Commissioner to ‘identify a significant number of jobs in the economy
that accommodate the claimant’s residual functioning capacity[.]” Kepke v. Comm’r of Soc.
Sec., 636 F. App’x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004)).
The SSA can carry its burden at the fifth step of the evaluation process by relying on the
Medical-Vocational Guidelines, otherwise known as “the grids,” but only if a nonexertional
impairment does not significantly limit the claimant, and then only when the claimant’s
characteristics precisely match the characteristics of the applicable grid rule. See Anderson v.
Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010); Wright v. Massanari, 321 F.3d 611,
615–16 (6th Cir. 2003).

Otherwise, the grids only function as a guide to the disability

determination. Wright, 321 F.3d at 615–16; see Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir.
1990). 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 to perform specific jobs, typically through vocational expert testimony.
Anderson, 406 F. App’x at 35; see Wright, 321 F.3d at 616 (quoting SSR 83-12, 1983 WL
31253, *4 (Jan. 1, 1983)).

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When determining a claimant’s residual functional capacity (“RFC”) at steps four and
five, the SSA must 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); Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R.
§ 404.1545(e)).
C. Plaintiff’s Statement of Errors
Taylor first argues that the ALJ erred in failing to give controlling weight to the opinions
of his treating specialist, Dr. Pradumna Singh. He specifically takes issue with the ALJ’s finding
that “there are no treatment records of record from the claimant’s treating mental health care
provider, Dr. Pradumna Singh.” (Docket No. 12, p. 2.) The Government concedes that there
were in fact treatment notes from Dr. Singh in the record, but contends that this error was
harmless since the ALJ found that the opinion was unsupported by the record and the ALJ did
actually review Dr. Singh’s records because she cites to exhibits B11F and B19F, which contain
a majority of Dr. Singh’s treatment records. (Docket No. 17, p. 6.)
The administrative regulations implementing the Social Security Act impose standards on
the weighing of medical source evidence. Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011).
The significant deference accorded to the Commissioner’s decision is conditioned on the ALJ’s
adherence to these governing standards. In Gentry v. Commissioner of Social Security, the Sixth
Circuit re-stated the responsibilities of the ALJ in assessing medical evidence in the record in
light of the treating source rule:
Chief among these is the rule that the ALJ must consider all
evidence in the record when making a determination, including all
objective medical evidence, medical signs, and laboratory findings.
20 C.F.R. § 404.1520(a)(3); 20 C.F.R. § 404.1512(b); 20 C.F.R. §
404.1513. The second is known as the “treating physician rule,”
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see Rogers, 486 F.3d at 242, requiring the ALJ to give controlling
weight to a treating physician's opinion as to the nature and
severity of the claimant’s condition as long as it “is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2)
(language moved to 20 C.F.R. § 404.1527(c)(2) on March 26,
2012). The premise of the rule is that treating physicians have the
best detailed and longitudinal perspective on a claimant’s condition
and impairments and this perspective “cannot be obtained from
objective medical findings alone.” 20 C.F.R. § 416.927(d)(2)
(language moved to 20 C.F.R. § 416.927(c)(2) on March 26,
2012). Even when not controlling, however, the ALJ must
consider certain factors, including the length, frequency, nature,
and extent of the treatment relationship; the supportability of the
physician’s conclusions; the specialization of the physician; and
any other relevant factors. Rogers, 486 F.3d at 242. In all cases,
the treating physician’s opinion is entitled to great deference even
if not controlling. Id. The failure to comply with the agency’s
rules warrants a remand unless it is harmless error. See Wilson,
378 F.3d at 545–46.
741 F.3d 708, 723 (6th Cir. 2014).
The Sixth Circuit has also made clear that an ALJ may not determine the RFC by failing
to address portions of the relevant medical record, or by selectively parsing that record—i.e.,
“cherry-picking” it—to avoid analyzing all the relevant evidence. Id. at 724 (citing Minor v.
Comm’r of Soc. Sec., 513 F. App’x 417, 435 (6th Cir. 2013) (reversing where the ALJ “cherrypicked select portions of the record” rather than doing a proper analysis); Germany-Johnson v.
Comm’r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (finding error where the ALJ was
“selective in parsing the various medical reports.”)). This is particularly so when the evidence
ignored is from a treating physician. Ignoring medical evidence from a treating source in
fashioning the RFC, without a proper analysis of why such action is taken, cannot be harmless
error because it “undermines [the ALJ’s] decision” to overlook evidence that could have
potentially supported a more restrictive RFC or even a finding of disability. Gentry, 741 F.3d at
10

729 (citations omitted); Grubbs v. Comm’r of Soc. Sec., No. 12–14621, 2014 WL 1304716, at *2
(E.D. Mich. Mar. 31, 2014) (“The absence of a review of treatment records from a treating
source and the lack of analysis of such made it impossible for the ALJ to properly assess whether
the Plaintiff was disabled and/or whether Plaintiff had the residual functional capacity to do any
work.”).
It is uncontested that Dr. Singh is Taylor’s treating mental health care physician and
therefore subject to the treating physician rule. It is further uncontested that the ALJ was
incorrect when she stated in her summary of the objective medical evidence that there were no
treatment records of record from Dr. Singh. The ALJ also stated that no objective evidence was
provided to support Dr. Singh’s opinion. (Tr. 29.) This is simply not true. There were at least
seven treatment records, spanning from September of 2011 to August 2012, which document a
substantial part of Dr. Singh’s relationship with Taylor. While the ALJ may have cited to
exhibits which contain Dr. Singh’s treatment records, Dr. Singh’s actual name does not appear
once in that summary; therefore, there is no way for the court to determine whether the ALJ
actually attributed those records to Dr. Singh.
While exhibits B11F and B19F do contain all of the treatment records from Dr. Singh,
the ALJ’s one paragraph analysis of those exhibits fails to even mention the word “seizure,”
“neurologist,” or “Dr. Singh” a single time. Therefore, there is no way for the court to determine
whether the ALJ actually attributed those records to Dr. Singh. Indeed, the paragraph focuses on
Taylor’s shoulders, hips, and lack of compliance regarding his seizure medication but never
discusses Dr. Singh’s treatment records for Taylor’s seizures. Significantly, the VE testified that
the restrictions noted by Dr. Singh in his Medical Assessment would preclude all work. (Tr. 81.)

11

Furthermore, the ALJ accorded “little weight” to Dr. Singh’s opinion that, among other
things,

Taylor

has

“poor

or

no

ability

to

function

independently

or

maintain

attention/concentration.” (Tr. 29.) The ALJ stated that she gave Dr. Singh’s opinion less weight
because
no objective evidence [was] provided to support such limitations.
Moreover, the claimant’s considerable activities of daily living
undermine Dr. Singh’s opinion as to claimant’s independent
functioning, and the claimant exhibited his ability to pay attention
and concentrate at his psychological evaluation, during which he
correctly performed multiple types of mathematical equations, for
example. He also reported that he enjoys watching TV, including
watching football games and watching golf, which requires a
reasonable amount of concentration. See Ex. B3E, p. 5.
(Id.) It thus appears that the ALJ reduced the weight of Dr. Singh’s opinion, at least in part, on
the inaccurate basis that there were no treatment records provided. Further, the ALJ erred by
failing to apply the other factors—such as the length of the treatment relationship, the frequency
of the examination, and the extent of the source’s knowledge of the impairments—to determine
the appropriate weight to give Dr. Singh’s opinion. See Wilson, 378 F.3d at 544. This violated
the treating physician rule.
As the Sixth Circuit has repeatedly stated, where there is a violation of the treating source
rule or the good reasons requirement, without harmless error, the matter must be remanded. Id.
at 545–46. This is true even when the conclusion of the ALJ may be otherwise justified based on
a review of the record. Gentry, 741 F.3d at 729 (citations omitted). The ALJ’s error here cannot
be said to be harmless because it overlooked evidence that could have potentially supported a

12

more restrictive RFC or even a finding of disability. Id. Accordingly, the matter here must be
remanded.2
IV.

Conclusion

For the reasons stated above, Plaintiff’s Motion for Judgment on the Record (Docket No.
11) will be granted to the extent the case will be reversed and remanded pursuant to sentence
four of 42 U.S.C. § 405(g) for consideration under the appropriate burden of proof and in
consideration of any new evidence. Notes
_______________________________
ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE

2

Notably, the Appeals Council did not address the ALJ’s misstatement regarding Dr. Singh’s treatment records.
This issue could and should have been easily resolved by the Appeals Council at a much earlier stage of the case.

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