Blackwell v. Social Security Administration

Filing 22

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 2/8/18. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DANTAY YVETTE BLACKWELL,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Case No. 3:16-cv-03160
Judge Aleta A. Trauger

MEMORANDUM
Plaintiff Dantay Yvette Blackwell brings this action under 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Commissioner’s denial of her application for supplemental
security insurance (“SSI”) under Title XVI of the Social Security Act..
On December 13, 2017, the magistrate judge issued a Report and Recommendation
(“R&R”) (Doc. No. 19), recommending that the decision of the Social Security Administration
(“SSA”) be affirmed. The plaintiff has filed timely Objections (Doc. No. 20), to which the SSA
has responded (Doc. No. 21). For the reasons discussed herein, the court will overrule the
Objections, accept the R&R, and dismiss this action.
I.

PROCEDURAL BACKGROUND
The plaintiff filed her application for SSI on March 7, 2013, claiming that she had been

disabled since June 1, 2006 due to a seizure disorder. (See Doc. No. 13, Administrative Record
(AR) 165–70. 1) She later amended the onset date to January 1, 2006. (AR 163.)
The SSA denied the application initially and upon reconsideration. (AR 64–89.) The

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Page number references to the administrative record are consistent with the Bates stamp
number at the lower right corner of each page.

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plaintiff requested and received a hearing before an Administrative Law Judge (“ALJ”), which
was conducted on April 8, 2015. (AR 27–63.) The plaintiff and a vocational expert testified at
the hearing. The plaintiff appeared pro se.
The ALJ issued a decision unfavorable to the plaintiff on October 6, 2015, finding that
the plaintiff was not disabled within the meaning of the Social Security Act and Regulations.
(AR 6–25.) The ALJ made the following specific factual findings:
1. The claimant has not engaged in substantial gainful activity since March 7,
2013, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: seizure disorder;
headaches; sleep apnea; and obesity (20 CFR 416.920(c)). . . .
3. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). . . .
4. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at all
exertional levels except that she should avoid all exposure to hazards. . . .
5. The claimant has no past relevant work (20 CFR 416.965). . . .
6. The claimant was born on March 24, 1974 and was 38 years old, which is
defined as a younger individual age 18–49, on the date the application was filed
(20 CFR 419.963).
7. The claimant has at least a high school education and is able to communicate in
English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have
past relevant work (20 CFR 416.968).
9. Considering the 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 416.969 and 415.969(a)). . . .
10. The claimant has not been under a disability, as defined in the Social Security
Act, since March 7, 2013, the date the application was filed (20 CFR 416.920(g)).
(AR 12–21).
The Appeals Council declined review of the case (AR 1), thus rendering the ALJ’s

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decision the “final decision” of the Commissioner.
The plaintiff filed her Complaint initiating this action on December 8, 2016. (Doc. No.
1.) The SSA filed a timely Answer (Doc. No. 12), denying liability, and a complete copy of the
Administrative Record (Doc. No. 13). On May 17, 2017, the plaintiff filed her “Memorandum”
(Doc. No. 16), which the court construes as a motion for judgment on the administrative record.
The SSA filed a Response. (Doc. No. 17.) On December 13, 2017, the magistrate judge issued
his R&R (Doc. No. 19), recommending that the plaintiff’s motion be denied and that the SSA’s
decision be affirmed.
The plaintiff filed Objections to the R&R (Doc. No. 20); the SSA has filed a Response in
opposition to the Objections (Doc. No. 21).
II.

STANDARD OF REVIEW
When a magistrate judge issues a report and recommendation regarding a dispositive

pretrial matter, the district court must review de novo any portion of the report and
recommendation to which a proper objection is made. Fed. R. Civ. P. 72(b)(1)(C); 28 U.S.C. §
636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of
Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). In conducting its review of the objections, the district
court “may accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
In Social Security cases under Title XVI, like those under Title II, the Commissioner
determines whether a claimant is disabled within the meaning of the Social Security Act and, as
such, entitled to benefits. 42 U.S.C. §§ 1383(c), 405(h). The court’s review of an ALJ’s decision
is limited to a determination of whether the ALJ applied the correct legal standards and whether
the findings of the ALJ are supported by substantial evidence. Miller v. Comm’r of Soc. Sec., 811

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F.3d 825, 833 (6th Cir. 2016) (quoting Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th
Cir. 2009)). The substantial evidence standard is met if a “reasonable mind might accept the
relevant evidence as adequate to support a conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004) (internal citations omitted). “The substantial evidence standard . . .
presupposes that there is a zone of choice within which the decision makers can go either way,
without interference by the courts.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir.
2009) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). “Therefore, if substantial
evidence supports an ALJ’s decision, the court defers to that finding, ‘even if there is substantial
evidence in the record that would have supported an opposite conclusion.’” Id. (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
III.

OBJECTIONS
The plaintiff objects very generally that (1) her disability is not being taken seriously; (2)

“no one is paying attention” to her complaints about the side effects of her anti-seizure
medications; (3) her TennCare coverage is going to terminate, so she will no longer be able to
afford her medications; (4) her driver’s license was revoked as a result of her seizures; (5) she
did nothing to cause her seizure disorder and believes it is unfair that other people qualify for
disability as a result of impairments caused by lifestyle choices; and (6) no one will hire a person
who wears a bracelet stating that she is subject to having a seizure at any moment. (Doc. No. 20,
at 1.)
IV.

ANALYSIS
A.

Seriousness of Impairment

The magistrate judge incorporated the ALJ’s detailed summary of the plaintiff’s medical
history into the R&R, which the court adopts and incorporates herein in its entirety. The record

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establishes that the plaintiff’s seizures are well controlled and that the side effects are minimized
when she is compliant with her prescribed medication. The Sixth Circuit has repeatedly
confirmed that evidence that medical issues can be improved with the use of prescribed drugs
supports the denial of disability benefits. See, e.g., Smith v. Comm’r of Soc. Sec. Admin., 564 F.
App’x 758, 763 (6th Cir. 2014); Hardaway v. Sec’y of Health & Human Servs., 823 F.2d 922,
927 (6th Cir. 1987).
The plaintiff has not pointed to any evidence in the record that the ALJ failed to consider
or that further supports her disability claim. The court finds, upon a review of the record as a
whole, that the ALJ’s decision that the plaintiff’s seizure disorder was not disabling is supported
by substantial evidence in the record.
B.

Side Effects of Medications

The record reflects that the plaintiff has never complained that any symptoms other than
the seizures themselves were disabling. In reviewing the record, the ALJ took note of the
plaintiff’s claims that her medications made her sleepy and affected her coordination. The ALJ
also observed that the medical record did not support the plaintiff’s claims that the side effects
themselves were sufficiently severe to impair her ability to work. In particular, the ALJ noted
that the treatment records do not reflect that the plaintiff complained to her treating physician
about significant adverse side effects from the medication, nor are there any medical records
attributing the plaintiff’s tiredness to her medications. The ALJ concluded, based on the medical
record, that the plaintiff’s subjective complaints of fatigue were not fully credible.
The ALJ’s determination in that regard is supported by substantial evidence in the record.
In particular, the plaintiff was asked at the hearing whether she had talked to her doctor about the
fatigue, which she claimed had increased since he had increased her dosage of Keppra. She

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responded: “We talk. He knows.” (AR 52.) She further testified, however, that she had not asked
the doctor about changing the dosage to help her and claimed, “I guess he figures since I don’t
work that . . . it’s not a problem.” (AR 52–53.) The medical record shows that she had
complained of dizziness and tiredness in May 2013, which she blamed on her medication, but the
doctor noted then that the lab results showed that the blood level of her medication was within
the normal range. (AR 245.) The treating physician suspected that the plaintiff had sleep apnea
and referred her twice for a sleep study, but her insurance provider refused to approve it. As a
result,, there is not sufficient evidence in the medical record to confirm whether the plaintiff
suffers from sleep apnea. The plaintiff herself, however, did not claim to have any impairment,
other than epilepsy, that affected her ability to work. (AR 34.)
The ALJ’s conclusion that the side effects from the plaintiff’s medications did not have
more than a minimal effect on the plaintiff’s ability to work is supported by substantial evidence
in the record.
C.

Access to Healthcare

The plaintiff’s concerns about losing her healthcare in the future and being unable to
afford her medications going forward are not trivial. A claimant’s entitlement to benefits,
however, is based upon a showing of disability, defined as an inability to engage in substantial
gainful activity by reason of a medically determinable impairment. 29 C.F.R. § 416.905(a). At
the time she applied for SSI and through the hearing date, she had insurance coverage and never
contended that she was unable to afford the prescribed medication. The ALJ and this court can
only determine disability based upon the current record, not based upon projection and
speculation about what might occur in the future.
D.

Lifestyle Choices

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The plaintiff is correct that causation of an impairment is not a factor to be considered in
SSA disability determinations, with certain exceptions that do not apply here. See, e.g., 20 C.F.R.
§ 404.1506 (providing for the exclusion of any “felony-related impairment”). The plaintiff does
not actually contend that the magistrate judge or the ALJ erred in applying the law to her case.
E.

Non-Impairment-Related Obstacles

The plaintiff’s other objections concern her prospects of getting hired rather than her
ability to perform substantial gainful activity. As the SSA points out, however, neither the Social
Security Act nor the implementing regulations are concerned with whether a claimant would be
hired for the particular job she desires. Rather, to be entitled to benefits, a claimant must first
establish that she is disabled under the statute and regulations in the sense that her impairments
“significantly limit[s] [her] physical or mental ability to do basic work activities.” 20 C.F.R. §
416.920(c); see also 42 U.S.C. § 1382c(a)(3)(A) (an individual is disabled if “unable to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of not less
than twelve months”).
If so, the SSA must then consider whether jobs exist in the national economy that a
person with the plaintiff’s impairments can perform. 20 C.F.R. § 416.966(a). The regulations
explain that it does not matter whether work exists in the claimant’s immediate area, whether a
specific job vacancy exists, or whether the claimant would be hired if she applied for work. Id. If
work that a claimant could perform exists in significant numbers in the national economy, a
claimant will be deemed not disabled. Id. § 416.966(b). In particular, the SSA is not called upon
to consider such matters as a claimant’s inability to get work, a lack of work in the local area,
employers’ hiring practices, or the fact that a claimant “would not actually be hired to do work

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[she] could otherwise do.” id. § 416.966(c).
The plaintiff has not demonstrated error on the part of the ALJ or the magistrate judge in
concluding that there are significant numbers of jobs in the national economy that the plaintiff
could perform, given her limitations, including the jobs of cashier, sales attendant, and storage
facility rental clerk. (See AR 20, 54–55.)
V.

CONCLUSION
For the foregoing reasons, the court will overrule plaintiff’s Objections (Doc. No. 20),

accept and adopt the magistrate judge’s R&R (Doc. No. 19), deny the plaintiff’s motion for
judgment (Doc. No. 16), and affirm the SSA’s decision.
An appropriate Order is filed herewith.
ENTER this 8th day of February 2018.

ALETA A. TRAUGER
United States District Judge