Kelly v. Social Security Administration

Filing 19

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 7/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SANDRA JEAN KELLY,
Plaintiff,
v.
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NANCY BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 3:14-cv-00557
Judge Trauger

MEMORANDUM
Pending before the court is Plaintiff Sandra Jean Kelly’s Motion for Judgment on the
Administrative Record (“Motion”) (Docket No. 12), filed with a Memorandum in Support
(Docket No. 12-1).

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

Response in Opposition to Plaintiff’s Motion (Docket No. 13), to which Plaintiff replied (Docket
No. 14). On January 13, 2017, this case was referred to a Magistrate Judge. (Docket No. 18.)
Upon consideration of the parties’ filings and the transcript of the administrative record (Docket
No. 10), 2 and for the reasons given herein, the Plaintiff’s Motion (Docket No. 12) will be
granted.
I.

Introduction

Kelly filed an application for disability insurance benefits (“DIB”) under Title II of the
Social Security Act and an application for supplemental security income (“SSI”) under Title XVI
on February 4, 2010, both alleging a disability onset of June 26, 2009. (Tr. 9.) Kelly’s claim

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Nancy Berryhill became Acting Commissioner for the Social Security Administration on January 23, 2017.
Referenced hereinafter by page number(s) following the abbreviation “Tr.”

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was denied at the initial and reconsideration stages of state agency review. Kelly subsequently
requested de novo review of her case by an Administrative Law Judge (“ALJ”). The ALJ heard
the case on July 23, 2012, when Kelly appeared with counsel and gave testimony. (Tr. 36–52.)
Testimony was also received from a vocational expert (“VE”). At the conclusion of the hearing,
the matter was taken under advisement until August 24, 2012, when the ALJ issued a written
decision finding Kelly not disabled.

(Tr. 6–21.)

That decision contains the following

enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act through
at least the date of this decision.
2. The claimant has not engaged in substantial gainful activity since June 26, 2009, 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: degenerative disc disease with
radiculopathy, obesity, major depressive disorder, and post traumatic [sic] stress
disorder (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, … the claimant has the residual
functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b) except occasional postural activities. She can understand simple and
detailed instructions, can concentrate and persist for two hours at a time, can interact
appropriately with others, and can adapt to infrequent changes.
6. The claimant is unable to perform any past relevant work (20 C.F.R. 404.1565 and
416.965).
7. The claimant is a younger individual (20 C.F.R. 404.1563 and 416.963).
8. The claimant likely has a limited education (20 C.F.R. 404.1564 and 416.964).
9. Transferability of job skills is an issue in this case because the claimant’s past
relevant work is unskilled (20 C.F.R. 404.1568 and 416.968).
10. Considering the claimant’s age, education, work experience, and residual functioning
capacity, there are jobs that exist in significant numbers in the regional and national
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economy that the claimant can perform (20 C.F.R. 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 June 26, 2009, through the date of this decision (20 C.F.R. 404.1520(g) and
416.920(g)).
12. The claimant’s subjective complaints, including pain, have been evaluated as required
under regulations and rulings.
(Tr. 11–12, 14–16.)
On December 24, 2013, the Appeals Council denied Kelly’s request for review of the
ALJ’s decision (Tr. 1–5), 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:
The claimant was injured at work in December 2008, but
continued to work while undergoing conservative treatment until
June 2009. Although surgery was originally to be performed in
February 2009, insurance problems prevented it until the later date,
when she underwent a laminectomy and microdiskectomy [sic] at
L4-5 for herniated disc, spondylosis, and radiculopathy. Her
treating surgeon, Dr. Boyce, noted by September 2009 that she no
longer limped, she did not appear to be in any distress, and had no
tenderness to palpation, with nearly normal range of motion. She
was to continue physical therapy, increase her dosage of Lyrica,
and take Ultram. By November 2009, she had recovered nicely
from her radicular complaints. Pain was a 2 on a scale of 10. She
had good range of motion, negative straight leg raising testing, and
strength and sensation were intact. Dr. Boyce found that the
claimant could work as tolerated. She was seen for trochanteric
bursitis that month and in January 2010, for which she was given
an injection. She was to return as needed. Exhibits 2F, 3F, 6F, 8F,
and 14F. There is no evidence that she has returned to see Dr.
Boyce.
She was then seen at Matthew Walter Comprehensive Health
Center from August 2010 through November 2011, during which
time there were few complaints of back or leg pain. In fact, the
claimant affirmatively stated that her pain was 0 on a scale of 10 in
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August and September 2010, May, August, and November 2011.
She was seen for vaginitis, rashes, and beginning in May 2011,
depression. GAF was no lower than 56. Weight varied from 217
pounds in November 2011 to 225 pounds in August 2010. X-rays
of the left hip were normal in July 2011. She reported that she had
a GED on several occasions. Exhibit 20F.
She was not seen for pain management until September 2011, and
then received a series of epidural steroid and sacroiliac joint
injections, which apparently provided at least temporary relief.
Pain was reported as 0 to 3 on a scale of 10 after each injection.
She had abnormal urine drug tests in January 2012, when she
tested positive for Methadone, although she claimed never to have
taken the medication, and in February 2012, when she tested
negative for a prescribed medication, Ultram. She reported that
she took that medication only when needed. She received
trochanteric bursa injections for hip pain again in March and April
2012. She was seen for a Workers Compensation neurosurgical
evaluation in April 2012 by Dr. Elalayi, who recommended no
further surgery. He reviewed an October 2011 MRI which he
interpreted as showing no evidence of a herniated disk or
impingement. He recommended pain management evaluation.
Exhibits 16F, 17F, and 19F.
Prior to her Workers Compensation settlement, she underwent an
independent medical evaluation by Dr. Gaw, in March 2010, less
than a year out from her surgery. She reported feeling 15-20%
better than before surgery (but see her report of pain at 0 on a scale
of 10 in August 2010, [E]xhibit 20F). On physical examination,
she weighed 220 pounds at a height of 66 inches. She was in no
obvious distress, although she walked fairly slowly and hesitantly.
She stood during the examination, because she said she could not
sit. She reported that she had a GED. Spine had normal curvature.
She had functional range of motion. She was able to do straight
leg raising to 80 degrees. There was no weakness or atrophy of
muscle groups of the lower extremities. She had normal sensation.
Coordination was good. Reflexes were equal in lower extremities.
There was no edema. She had good movement of the hips. Dr.
Gaw concluded that her work injury had aggravated her preexisting degenerative disk [sic] disease. He found an 11%
permanent partial impairment rating of the whole person. Exhibit
21F.
Because she complained of depression but had not undergone
mental health treatment, she was referred for consultative
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psychological examination, conducted by examiner Stair in April
2010. She drove herself to the evaluation. She was a good
historian, and was cooperative. She complained of sadness,
anxiety, and worrying a lot. The only mental health treatment she
had received was six weeks of counseling in 1995. She reported
she had been sexually abused as a child. She preferred to avoid
other people currently. She had been married at one time, and
lived with her husband and daughter. In contrast to other
statements, she reported that she had never completed her GED.
Her grades in school were low; she had difficulty focusing because
of the problems at home. On mental status evaluation, abstracting
ability was average. She was oriented. She did fairly well on
serial seven testing. She could recall all three items after five
minutes. Memory was intact. She had an average degree of higher
executive functioning. Affect was dysphoric. Attention was fair to
good. Speech was within normal limits. Eye contact was good.
She reported a variable appetite, although she had gained 45
pounds in the last three to four years. She complained of difficulty
sleeping.
She showed moderate situational anxiety, with
occasional panic features (but not enough to meet the criteria for a
panic disorder). She was moderately depressed. Intellectual
functioning appeared to be in average range. Activities of daily
living included getting her husband off to work, cleaning up
around the house with the help of her daughter, talking on the
telephone, making quick trips to the store, doing water aerobics to
help her back recover, and occasional cooking. She saw her family
weekly. Diagnostic impression was adjustment disorder with
mixed anxiety and depressed mood, with a GAF of 55. No more
than mild limits were found in any area of functioning. Exhibit
10F.
As noted above, she was treated for depression at the Matthew
Walker Center for several months beginning in May 2011, over a
year after the consultative evaluation. She began treatment at the
Mental Health Cooperative in June 2011. She was noted to have
stage I depression. She tested positive for benzodiazepines for
months although denied usage. One of the diagnoses to be ruled
out was benzodiazepine abuse. She was seen for medication
management by Nurse Practitioner Spitz; there is no evidence that
she ever saw a medical doctor. Symptoms included suicidal
ideation, irritability, anger, anxiety, and difficulty sleeping. She
told her case manager in July 2011 that her house was being
foreclosed on. Major problems appeared to involve break-up of
her marriage and difficulty with her teenage daughter. She was
seen regularly for medication management, although not so
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regularly for individual therapy and case management; there are
several notations that she cancelled or failed to keep such
appointments. With adjustment in her medication, her symptoms
improved, with decreased irritability, better sleep, lack of suicidal
ideation, and better concentration and attention. In March 2012,
she reported that she wanted to go back to work. Diagnoses
included major depressive disorder and post traumatic [sic] stress
disorder. Exhibit 18F. Nurse Practitioner Spitz completed an
assessment in July 2011, only one month after she started treating
the claimant in June 2011. She found mild limits in understanding,
remembering, and carrying out instructions, with moderate limits
on complex instructions, moderate limits in making judgments on
complex work related decision, social interaction, and mild limits
in adaptation. Exhibit 15F.
(Tr. 12–14.)
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.

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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.
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
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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.
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.
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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)).
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
Kelly argues that the ALJ erred by failing to: (1) consider or evaluate her mental
impairments and resulting functional limitations; (2) include limitations in her RFC finding to
account for Kelly’s mental impairments and resulting limitations; and (3) properly evaluate or
assign weight to the medical opinions of record and by failing to resolve inconsistencies between
those opinions and her RFC finding. (Docket 12-1, pp. 10–16.) Because the court finds that the
ALJ committed reversible error with respect to Kelly’s final argument, for the reasons discussed
below, the court also finds it unnecessary to address Kelly’s first two claims.
SSR 96-6p requires an ALJ to consider opinions of state agency medical experts when
considering disability claims. Such medical opinions are not binding on the ALJ, but the ALJ
may not ignore them and must explain the weight given to the opinions in their decision. 20
C.F.R. § 404.1527(e)(2)(ii). Such explanation must be “meaningful.” Ott v. Comm’r of Soc.
Sec., No. 1:08–CV–00399, 2009 WL 3199064, at *3 (S.D. Ohio Sept. 29, 2009). In fact, when
weighing opinions of state agency consultants, Social Security regulations require the ALJ to
apply the same level of scrutiny as afforded to treating source opinions. Gayheart, 710 F.3d at
379.

“A more rigorous scrutiny of the treating-source opinion than the nontreating and
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nonexamining opinions is precisely the inverse of the analysis that the regulation[s] require[ ].”
Id.
Here, in analyzing the opinions of the state agency doctors, the ALJ stated only that
[t]he light residual functional capacity is found, looking at medical
evidence in the light most favorable to claimant. The state agency
doctors found that she could do medium work. No treating
physician assessed her ability to work. Dr. Gaw, not a treating
source, found only an 11% permanent partial impairment rating of
the whole person, less than one year after her surgery. She told her
therapist in 2012 that she wanted to go back to work. The state
agency medical consultants and psychological examiner Stair did
not find any severe psychological limitations. However, since
those sources reviewed the record and examined the claimant, she
has obtained consistent mental health treatment. Her symptoms
have improved with treatment, which she admitted at the hearing.
The psychological limitations listed above limit the claimant to
essentially unskilled work.
(Tr. 14–15.) This is quite simply insufficient.
Since there was no treating source’s opinion, the ALJ was required to provide a
meaningful explanation in the decision of the weight given to the opinions of the state agency
doctors. The ALJ failed to state the weight given to any of the medical opinions of record, failed
to consider all of the state agency doctors’ opinions, and also failed to mention or provide an
explanation concerning any of the 20 C.F.R. § 404.1527(c) factors. The ALJ’s conclusory
assessment thus fails to satisfy her obligation to provide a meaningful analysis of the weight
accorded all medical source opinions of record. See Evans v. Comm’r of Soc. Sec., 142 F. Supp.
3d 566, 576 (S.D. Ohio 2015) (citation omitted). The Commissioner argues that the ALJ’s
evaluation was proper and provides an explanation of the summaries of the various medical
opinions of record. (Doc. No. 13, pp. 9–12.) However, no such explanation is provided by the
ALJ, and the court “may not accept appellate counsel’s post hoc rationalizations for agency
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action. It is well-established that an agency’s action must be upheld, if at all, on the basis
articulated by the agency itself.” Berryhill v. Shalala, 4 F.3d 993, 1993 WL 361792, at *6 (6th
Cir. Sept. 16, 1993) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 50, 103 (1983)). “Courts are not at liberty to speculate on the basis of an administrative
agency’s order. … The court is not free to accept ‘appellate counsel’s post hoc rationalization for
agency action in lieu of reasons and findings enunciated by the Board.’”

Hyatt Corp. v.

N.L.R.B., 939 F.2d 361, 367 (6th Cir. 1991). Thus, the Commissioner’s post hoc rationalizations
are not an acceptable substitute for the ALJ’s lack of rationale concerning her treatment of the
medical opinions of the state agency doctors.
The court recognizes that the record may contain evidence that otherwise supports the
ALJ’s decision. Nevertheless, the ALJ is required to follow the procedures set forth in the SSA
regulations so that the court may ascertain whether the ALJ’s decision is, in fact, supported by
substantial evidence. Accordingly, the court concludes that remand for further proceedings is
necessary so that the ALJ can reasonably and meaningfully weigh all opinion evidence and
determine Kelly’s disability status anew.

Because of this conclusion, the court finds it is

unnecessary to address Kelly’s other arguments.
IV.

Conclusion

For the reasons stated above, Plaintiff’s Motion for Judgment on the Record (Docket No.
12) will be granted and an appropriate Order will be filed herewith.
ENTER this 31st day of July 2017.

_______________________________
ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE
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