Tucker v. Social Security Administration
Filing
19
MEMORANDUM OPINION AND ORDER: The Court having found no legal error on the part of the ALJ and that her decision is supported by substantial evidence, the Acting Commissioner's final decision is AFFIRMED. Accordingly, IT IS ORDERED that P laintiff's motion for judgment on the record (DE 16) be, and the same hereby is, DENIED. Signed by District Judge Joseph M. Hood on 12/18/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ERNIE D. TUCKER,
)
)
Plaintiff,
)
)
V.
)
)
NANCY A. BERRYHILL1, Acting
)
Commissioner of Social Security, )
)
Defendant.
)
Civil No. 3:16-cv-1337
MEMORANDUM OPINION AND ORDER
****
Plaintiff Ernie D. Tucker brought this action pursuant to 42
U.S.C. § 405(g) to obtain judicial review of an administrative
decision of the Commissioner of Social Security denying his claims
for disability insurance benefits and supplemental security income
(SSI).
The Court, having reviewed the record, will AFFIRM the
Commissioner’s
decision
as
it
is
supported
by
substantial
evidence.
I.
Judicial review of the Commissioner’s decision is limited to
determining whether it is supported by substantial evidence and
was made pursuant to proper legal standards.
1
Cutlip v. Sec’y of
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should
be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in
this suit. No further action needs to be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. §
405(g).
1
Health
&
Human
Servs.,
25
F.3d
284,
286
(6th
Cir.
1994).
“Substantial evidence” is defined as “more than a scintilla of
evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
resolve
Id.
conflicts
determinations.
Id.
Courts are not to conduct a de novo review,
in
the
evidence,
or
make
credibility
Rather, we are to affirm the Commissioner’s
decision, provided it is supported by substantial evidence, even
if we might have decided the case differently.
See Her v. Comm’r
of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step
analysis.
See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474
(6th Cir. 2003).
Step One considers whether the claimant is still
performing substantial gainful activity; Step Two, whether any of
the claimant’s impairments are “severe”; Step Three, whether the
impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform his past relevant
work; and Step Five, whether significant numbers of other jobs
exist in the national economy which the claimant can perform.
As
to the last step, the burden of proof shifts from the claimant to
the Commissioner.
Id.; see also Preslar v. Sec’y of Health & Human
Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
2
II.
On
July
5,
2012,
Plaintiff
filed
his
applications
for
disability insurance benefits and SSI alleging disability as of
January 1, 2009 which he later amended to February 1, 2011 (Tr.
14, 37, 179 ).
pulmonary
damage,
He alleged disability due to chronic obstructive
disease
and
loss
(COPD),
of
diabetes,
feeling
in
high
the right
cholesterol,
ankle
(Tr.
nerve
265).
Plaintiff’s claims were denied initially and on reconsideration
and Plaintiff then requested a hearing on the matter (Tr. 156).
Administrative Law Judge (“ALJ”) Renee S. Andrews-Turner conducted
a hearing, but thereafter denied Plaintiff’s claims (Tr. 14-27).
On April 16, 2016, the Appeals Council declined Plaintiff’s request
for review (Tr. 4-10), making the ALJ’s October 31, 2014, decision
the final agency decision for purposes of judicial review. This
appeal followed and the case is ripe for review pursuant to 42
U.S.C. § 405(g)2.
III.
After careful consideration of the entire record, the ALJ
found
that
Plaintiff
had
severe
impairments
that
included
diabetes mellitus with neuropathy; chronic obstructive pulmonary
disease; hyperlipidemia; anxiety disorder; a depressive disorder;
2
The
Court notes that Plaintiff has not filed a reply to
Defendant’s response to his motion for judgment on the record.
3
and a personality disorder (Tr. 17).
However, the ALJ found that
he did not have an impairment or combination of impairments listed
in or medically equal to one
contained in 20 C.F.R. part 404,
subpart P, appendix 1 (Tr. 17).
The
ALJ
determined
that
Plaintiff
retained
the
residual
functional capacity to lift and/or carry 20 pounds occasionally
and 10 pounds frequently; stand and walk three hours in an eighthour workday; has no sitting restrictions; occasionally push and
pull
with
the
bilateral
lower
extremities.
He
should
avoid
concentrated exposure to fumes, odors, dust, gases, and poor
ventilation; could understand, remember, and carry out simple
instructions;
could
occasionally
interact
with
coworkers
and
supervisors; could have no interaction with the general public;
and could adapt to infrequent change in the workplace(Tr 19).
The ALJ found that Plaintiff’s impairments would not preclude
him from performing work that exists in significant numbers in the
national economy, including work as an inspector, table worker,
and assembler (Tr. 26). Consequently, ALJ Turner-Andrews concluded
that Plaintiff was not disabled (Tr. 27).
IV.
Although Plaintiff generally argues that the ALJ’s decision
was not supported by substantial evidence, he raises several
specific issues: whether the ALJ properly evaluated the severity
4
of Plaintiff’s impairments, whether the ALJ properly considered
Plaintiff’s mental impairments, and whether substantial evidence
supported the finding that Plaintiff could perform “other” work.
Plaintiff
alleges
that
the
ALJ
erred
in
evaluating
the
severity of his impairments because the ALJ did not find that hand
neuropathy was a separate impairment, even while reaching the
overall finding that Plaintiff had diabetic neuropathy. See Pl.’s
Br. at 13. However, the ALJ could find that despite a finding that
Plaintiff had diabetic neuropathy, the medical evidence did not
show that Plaintiff had a distinct additional impairment of hand
neuropathy (Tr. 17).
The
ALJ
found
that
Plaintiff
had
severe
impairments,
including diabetes with neuropathy, COPD, hyperlipidemia (i.e.
high cholesterol), depression, and personality disorder (Tr. 17).
However, the ALJ declined to find that Plaintiff had the specific
additional impairment of neuropathy in the hands, finding that the
record did not support that this was a medically determinable
impairment (Tr. 17).
A severe impairment is an impairment that more than minimally
impacts an individual’s ability to work.
(severe impairments); SSR 96-3p.
showing that
See 20 C.F.R. § 404.1521
Plaintiff has the burden of
the impairment is severe and that it met the 12 month
durational requirements of the Act. See Harley v. Comm’r of Social
5
Sec., 485 F. App’x 802, 803 (6th Cir. 2012).
He must also show
that the impairment significantly limits his ability to perform
basic work activities. Id.
Here,
while
the
ALJ
found
that
the
record
support
an
impairment of diabetic neuropathy, he further found there was
inadequate evidence to support a medically determinable second
impairment of hand
neuropathy (Tr. 17).
In support of this
finding, the ALJ referred to Plaintiff’s treatment records from
the Wilson County Health Department (Tr. 17, citing Tr. 490545).
Citing this record (Exhibit 7F), the ALJ noted that there
was no medical evidence to support the diagnosis in the file (Tr.
17, Tr. 490-545).
Plaintiff did have diabetes and had reported
tingling in his hands and shoulders (Tr. 492-93).
However, these
records do not contain objective support and consist primarily of
complaints and diagnoses (Tr. 492-93).
The
Plaintiff
ALJ
had
considered
diminished
that
grip
at
the
consultative
strength,
examination was negative (Tr. 17).
but
the
examination
neurological
This is supported by the
examination records from Roy Johnson, M.D. (Tr. 487).
Plaintiff
complained of numbness in his hands (Tr. 487) as well as numbness
and tingling (Tr. 488).
But, objective abnormalities were not
noted in the neurological area (Tr. 489).
Plaintiff had diminished
left grip strength, but full right grip strength (Tr. 489).
6
The
doctor did not explain why Plaintiff’s grip strength in one hand
was diminished (Tr. 489).
Despite this grip strength limitation,
the doctor still believed that Plaintiff could lift up to 20 pounds,
and Dr. Johnson did not limit Plaintiff’s ability to use his hands
(Tr. 489).
The ALJ concluded no evidence supported hand neuropathy
(Tr. 17).
The ALJ’s decision shows that Plaintiff’s diabetic neuropathy
was considered multiple times during the evaluation of Plaintiff’s
residual functional capacity.
ALJ Turner-Andrews considered that
on examination Plaintiff could “ambulate effectively and perform
both fine and gross manipulations despite his neuropathy” (Tr. 18).
Based on Plaintiff’s testimony, the ALJ considered that Plaintiff
had not seen a specialist for neuropathy and that a medication,
Gabapentin, helped his neuropathy symptoms (Tr. 20, 44, 55, 61).
Furthermore, the ALJ considered that Plaintiff’s neuropathic
complaints were fairly scattered at medical visits (Tr. 24). While
he had some neuropathy issues, they were more moderate in nature
(Tr. 24).
The ALJ did, however, find that Plaintiff would have
additional limitations in standing and walking due to neuropathy
in his feet (Tr. 25).
The residual functional capacity limited
Plaintiff to only three hours per day of standing and walking (Tr.
19).
The ALJ properly considered Plaintiff’s alleged neuropathy.
As long as the ALJ considers all of an individual’s impairments,
7
the “failure to find additional severe impairments . . . does not
constitute reversible error.”
Kirkland v. Comm’r of Soc. Sec.,
528 F. App’x 425, 427 (6th Cir. 2013) (quoting Fisk v. Astrue, 253
F. App’x 580, 583 (6th Cir. 2007)).
Plaintiff argues that it is inconsistent for the ALJ to find
that he had diabetic neuropathy but not neuropathy in his hands.
However, a fair reading of the ALJ’s statements is that Plaintiff
had no separate and distinct impairment of hand neuropathy as
discussed above.
Plaintiff goes on to complain that the ALJ should not have
considered the absence of nerve conduction studies.
But the
absence of those studies would suggest that an examining physician
did
not
believe
that
Plaintiff’s
complaints
warranted
those
studies.
Plaintiff next relies on the diminished grip strength noted
during the consultative examination which was considered by the
ALJ (Tr. 17).
Plaintiff tries to make a connection between grip
strength and hand neuropathy that the consulting doctor did not
make, however.
While Plaintiff cites a medical article stating
that this could be one reason for the diminished grip strength,
this is highly speculative on Plaintiff’s part. The doctor, having
measured
the
grip
strength,
did
not
reach
this
conclusion.
Significantly, the doctor did not provide any limitations in the
8
use of the hands and found that Plaintiff could still lift up to
20 pounds (Tr. 489).
abnormalities
(Tr.
The doctor also found no neurological
489).
Regardless
of
why
Plaintiff
had
diminished grip strength, this limitation was accommodated by the
ALJ’s limitation to lifting 20 pounds, which was consistent with
the doctor’s opinion (Tr. 489).
This was substantial evidence to
support the ALJ’s findings.
Plaintiff makes the general claim that the finding of severe
diabetic neuropathy is illogical given that the ALJ found that
Plaintiff did not have hand neuropathy. But this is not illogical,
as the finding by the ALJ means that Plaintiff did have neuropathy
in the lower extremities, and Plaintiff’s ability to stand and
walk was limited accordingly.
In support of the additional
limitation of hand neuropathy, Plaintiff relies principally on his
own allegations, which are insufficient, and the grip strength
testing, which was not linked to hand neuropathy by the doctor.
Substantial evidence supports the ALJ’s finding that the medical
evidence
was
insufficient
to
establish
hand
neuropathy
as
a
specific medically determinable impairment.
Plaintiff next attacks the ALJ’s evaluation of his mental
impairments.
Specifically, Plaintiff alleges that the ALJ failed
to properly apply the Psychiatric Review Technique.
But, the ALJ
completed the required evaluation of activities of daily living,
9
social functioning, concentration, and episodes of decompensation
at step three of the sequential evaluation (Tr. 18).
The ALJ then
further considered Plaintiff’s mental impairments when determining
the
residual
functional
capacity,
and
limited
Plaintiff’s
capacities for work to accommodate those limitations (Tr. 19).
The Commissioner has supplemented the familiar five-step
sequential
process
eligibility
for
for
generally
benefits
with
evaluating
additional
a
claimant’s
regulations
dealing
specifically with mental impairments. See 20 C.F.R. § 404.1520a.
This
special
procedure
must
be
followed
at
each
level
of
administrative review. The ALJ must evaluate allegations of mental
impairment by identifying a claimant’s limitations in four broad
functional areas: activities of daily living; social functioning;
concentration,
persistence,
decompensation.
Id.
ALJ
or
must
pace;
include
and
in
episodes
of
decision
his
his
rationale for reaching conclusions regarding the severity of the
mental impairment.
See 20 C.F.R. § 404.1520a(c)(4).
The purpose of the analysis is evaluate severity and determine
whether an individual meets or equals a listing in 20 C.F.R. pt.
404, subpt. P, app 1. See 20 C.F.R. § 404.1520a(d). The findings
are not intended to be a residual functional capacity assessment.
Social
Security
Ruling
96-8p
specifically
states
that
“[t]he
adjudicator must remember that the limitations identified in the
10
“paragraph B” and “paragraph C” criteria are not an RFC assessment
but are used to rate the severity of mental impairment(s) at steps
2 and 3 of the sequential evaluation process.” See SSR 96-8p.
Contrary
required
to
findings
Plaintiff’s
and
cited
allegations,
sufficient
the
ALJ
evidence
made
(Tr.
the
18).
Plaintiff argues, in effect, that he actually should have been
found to meet the listing requirements for listing 12.04 because
he had two marked impairments.
app. 1.
See 20 C.F.R. pt. 404, subpt. P.,
However, Plaintiff again relies primarily on his own
allegations in lieu of the medical evidence.
The ALJ found that Plaintiff’s activities of daily living
were only mildly restricted (Tr. 18).
The ALJ relied on a report
from the consulting psychologist (Tr. 546-53).
In that report,
the psychologist discussed Plaintiff’s activities of daily living
and functional abilities (Tr. 550).
For instance, Plaintiff cared
for children during the day (Tr. 550).
Plaintiff did not describe
marked limitations even if his statements to the psychologist were
taken at face value (Tr. 550).
As the ALJ later noted, Plaintiff
stated that he was caring for “seven children and thus becoming
irritable” (Tr. 21, 493).
Plaintiff speculates that a lack of desire or motivation based
on a psychological impairment could cause marked limitations in
activities of daily living.
Defendant does not dispute that this
11
could occur as a general premise, but the medical evidence making
that connection in this case is lacking.
The ALJ found that Plaintiff had moderate limitations in
social
functioning
(Tr.
18).
Plaintiff
alleges
that
these
limitations should have been “marked” as well. But, the ALJ relied
on the findings from the consulting psychologist’s examination
which is substantial evidence to support the ALJ’s findings (Tr.
18, 550).
Furthermore, in the residual functional capacity findings the
ALJ
considered
Plaintiff’s
mental
appropriate limitations (Tr. 19-25).
impairments
and
provided
Plaintiff complains that the
ALJ did not properly considered the opinion from the consulting
doctor, Linda Blazina, Ph.D.
However, the ALJ properly relied on
this report and gave it great weight (Tr. 25).
Concerning Plaintiff’s functioning, Dr. Blazina opined that
Plaintiff had an unimpaired ability to understand, remember, and
carry out simple instructions (Tr. 551).
That was incorporated
into the residual functional capacity (Tr. 19).
The
doctor
opined
that
Plaintiff’s
“social
interaction
abilities are considered to be at least moderately limited. . . ”
(Tr. 551).
This was accommodated by the ALJ’s limitation to only
occasional
interaction
with
coworkers
and
supervisors
interactions with the general public (Tr. 19).
12
and
no
The doctor believed that Plaintiff could adapt to changes in
a work routine and tolerate normal workplace stress subject to
moderate impairment (Tr. 551).
The ALJ accommodated this when she
found that Plaintiff could adapt to only infrequent workplace
changes (Tr. 19).
The doctor’s statements were not directly transferable to a
residual
functional
capacity
finding
but
the
ALJ
properly
evaluated them and incorporated them in her findings. The ALJ is
tasked
with
converting
medical
statements
into
vocationally
relevant residual functional capacity findings.
This is because the residual functional capacity must be
phrased differently.
The residual functional capacity is phrased
as “the most you can still do despite your limitations” under SSA’s
regulations.
capacity).
See
20
C.F.R.
§
404.1545
(residual
functional
Framing the residual functional capacity in this way,
an ALJ’s finding that an individual has the ability to perform a
“simple” job means that the “simple” job can be performed without
any limitations not specified in the RFC.”
See Smith-Johnson v.
Comm’r of Soc. Sec., 579 F. App’x 426, 437 (6th Cir. 2014) (“In
other words, the limitation to simple tasks portrays the tasks
that she can perform without being affected by her moderate
limitations.”).
A limitation to simple type work can account for
concentration deficits, as those deficits may only be encountered
13
when performing more complex work.
See Kepke v. Comm'r of Soc.
Sec., 636 F. App’x 625, 635 (6th Cir. 2016) (“Kepke, however, has
not cited to any evidence in the record that provides for specific,
concrete limitations on her ability to maintain concentration,
persistence or pace while doing simple, unskilled work.”).
The ALJ properly accommodated Plaintiff’s social and adaptive
deficits by limiting these functions as well (Tr. 19).
When
interacting only occasionally with coworkers and supervisors, and
with no interaction with the general public, Plaintiff would have
no further limitations.
Likewise Plaintiff could adapt only to
“infrequent” changes in the workplace (Tr. 19).
means
that
Plaintiff
is
precluded
from
This limitation
performing
jobs
with
requirements that exceed these findings representing the “most”
that Plaintiff can do.
credible
limitations.3
This properly considered Plaintiff’s
In
sum,
the
ALJ
properly
considered
Plaintiff’s mental limitations.
3
Plaintiff raises no issues concerning credibility.
The residual
functional capacity includes only those limitations that the ALJ
found consistent with the record as a whole. See Poe v. Comm’r of
Soc. Sec., 342 F. App’x 149, 155-56 (6th Cir. 2009) (“Residual
functional capacity is defined as the most a claimant can still do
despite the physical and mental limitations resulting from her
impairments. See 20 C.F.R. § 404.1545(a). In the instant matter,
the ALJ determined that while Poe had ‘severe impairments,’ her
claims
regarding
her
limitations
were
‘not
entirely
credible,’...”).
Here, the ALJ found Plaintiff’s allegations
not entirely credible (Tr. 24).
This finding was made in
accordance with SSA’s regulations and policies, and Plaintiff does
14
Turning now to Plaintiff’s argument that the ALJ erred in
finding that he could perform “other” work, it is clear that this
argument relies on the success of Plaintiff’s prior arguments.
Plaintiff identifies no abnormalities with the vocational expert
testimony, assuming that the residual functional capacity finding
is supported by substantial evidence.
Because the ALJ determined that Plaintiff could not perform
his past work, and because he had a significant non-exertional
restriction,
it
was
necessary
to
obtain
vocational
expert
testimony to assist in the determination of whether he could
perform other work at step five of the sequential evaluation.
See
20 C.F.R. §§ 404.1560(c), 404.1566(e), 404.1569, 404.1569a.
The
ALJ asked the vocational expert witness to assume an individual of
Plaintiff’s
age,
education,
work
experience,
and
residual
functional capacity (Tr. 69). In response to the ALJ’s hypothetical
question, the vocational expert testified that there were jobs
that such an individual could perform, including work as an
inspector, table worker, and assembler (Tr. 69-70).
The ALJ’s hypothetical question was proper, as an ALJ is only
required
to
incorporate
into
a
limitations she finds credible.
hypothetical
question
those
See Casey v. Sec’y of Health &
not appear to dispute it.
subjective complaints).
See 20 C.F.R. § 404.1529 (evaluating
15
Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993).
testimony
in
portraying
a
response
to
claimant’s
a
hypothetical
vocational
A VE’s
question
abilities
and
accurately
limitations
provides substantial evidence to meet the Commissioner’s burden at
the fifth step of the sequential evaluation process.
See Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010).
The ALJ found that Plaintiff was “not disabled” because he
could perform “other” work that existed in significant numbers in
the
national
economy
(Tr.
26-27).
Because
the
hypothetical
questions included only those limitations which the ALJ found
credible, and excluded those limitations discredited for a legally
sufficient reason, substantial evidence supports the finding that
Plaintiff could perform other work, so he is “not disabled” at the
fifth step of the sequential evaluation. See 20 C.F.R. § 404.1520.
The ALJ’s hypothetical question was proper, as an ALJ is only
required
to
incorporate
into
a
l i m itations she finds credible.
hypothetical
question
See Casey v. Sec’y of Health &
Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993).
testimony
in
response
portraying
a
claimant’s
those
to a hypothetical
vocational
question
abilities
and
A VE’s
accurately
limitations
provides substantial evidence to meet the Commissioner’s burden at
the fifth step of the sequential
evaluation process.
See Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010).
16
The ALJ found that Plaintiff was “not disabled” because he
could perform “other” work
that existed in significant numbers
in the national economy (Tr. 26-27).
Because the hypothetical
questions included only those limitations which the ALJ found
credible,
and
excluded
legally sufficient
finding that
those
reason,
limitations discredited for a
substantial
evidence
supports
the
Plaintiff could perform other work, so he is “not
disabled” at the fifth step of the sequential evaluation.
See
20 C.F.R. § 404.1520.
V.
The Court having found no legal error on the part of the ALJ
and that her decision is supported by substantial evidence, the
Acting Commissioner’s final decision is AFFIRMED.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for judgment on the
record (DE 16) be, and the same hereby is, DENIED.
A separate judgment in conformity herewith shall this date be
entered.
This the 18th day of December, 2017.
Sitting by Designation.
17
18
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