Evans v. Colvin

Filing 31

ORDER AFFIRMING DECISION OF COMMISSIONER. Signed by Judge James D. Todd on 3/30/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE

PAUL W. EVANS,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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No. 13-1118-T

ORDER AFFIRMING DECISION OF COMMISSIONER

Plaintiff has filed this action to obtain judicial review of Defendant Commissioner's
final decision denying his application for supplemental security income (“SSI”) benefits
based on disability under the Act. Plaintiff's application was denied initially and upon
reconsideration by the Social Security Administration. Plaintiff then requested a hearing
before an administrative law judge (“ALJ”), which was held on April 12, 2011.
On July 22, 2011, the ALJ issued a decision, finding that Plaintiff was not entitled to
benefits. The Appeals Council affirmed the ALJ's decision. This decision became the
Commissioner's final decision. Plaintiff filed this action, requesting reversal of the decision
of the Commissioner. For the reasons set forth below, the decision of the Commissioner is
AFFIRMED.
Pursuant to 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final
decision made by the Commissioner after a hearing to which he was a party. “The court shall

have the 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.” Id. The court's review is limited to
determining whether or not there is substantial evidence to support the Commissioner's
decision, 42 U.S.C. § 405(g), and whether the correct legal standards were applied. See
Lindsley v. Commissioner, 560 F.3d 601, 604–08 (6th Cir. 2009); Kyle v. Commissioner, 609
F.3d 847, 854 (6th Cir. 2010).
The Commissioner, not the court, is charged with the duty to weigh the evidence, to
make credibility determinations and resolve material conflicts in the testimony, and to decide
the case accordingly. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). When
substantial evidence supports the Commissioner's determination, it is conclusive, even if
substantial evidence also supports the opposite conclusion. See Foster v. Halter, 279 F.3d
348, 353 (6th Cir. 2001); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). A reviewing
court must defer to findings of fact by an appeals council when those findings conflict with
the factual findings of the ALJ. Id. at 545.
Plaintiff was born on August 3, 1966. R. 32. He attended school until the eleventh
grade and later obtained a GED degree. R. 33, 150. He has prior work experience as a
heating and air-conditioning installer. R. 34. Plaintiff alleges that he became disabled on
February 15, 2006, due to seizure disorder, balance, memory loss, and depression. R. 130.
However, in his disability report, Plaintiff states that he did not stop working until May 31,
2007. R. 145.
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The ALJ enumerated the following findings: (1) Plaintiff has not engaged in
substantial gainful activity since the application date; (2) Plaintiff has the following severe
impairments: affective mood disorder, status post spinal meningitis, seizure disorder, diabetes
mellitus, degenerative disc disease, osteoarthritis, and osteomyelitis; but he does not have
impairments, either alone or in combination, that meet or equal the requirements of any listed
impairment contained in 20 C.F.R. pt. 404, subpt. P, app. 1 of the listing of impairments; (3)
Plaintiff retains the residual functional capacity to perform sedentary work with no driving,
operating machinery, climbing, balancing, working around hazards, or using ladders;
Plaintiff’s work related activities should involve only simple instructions; (4) Plaintiff is
unable to perform his past relevant work; (5) Plaintiff was a younger individual with a high
school education on the application date; (6) transferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules (“the grids”) as a
framework supports a finding that Plaintiff is not disabled whether or not he has transferable
job skills; (7) considering Plaintiff’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff
can perform; (8) Plaintiff was not under a disability as defined in the Act at any time through
the date of this decision.
The Social Security Act defines disability as the inability to engage in substantial
gainful activity. 42 U.S.C. § 423(d)(1). The claimant bears the ultimate burden of
establishing an entitlement to benefits. Born v. Secretary, 923 F.2d 1168, 1173 (6th Cir.
1990). The initial burden of going forward is on the claimant to show that he is disabled
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from engaging in his former employment; the burden of going forward then shifts to the
Commissioner to demonstrate the existence of available employment compatible with the
claimant's disability and background. Id.
The Commissioner conducts the following, five-step analysis to determine if an
individual is disabled within the meaning of the Act:
1. An individual who is engaging in substantial gainful activity will not be
found to be disabled regardless of medical findings.
2. An individual 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 an individual 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 P of the regulations.
4. An individual who can perform work that he has done in the past will not
be found to be disabled.
5. If an individual cannot perform his or her 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.
20 C.F.R. § 404.1520(a)(4); Howard v. Commissioner, 276 F.3d 235, 238 (6th Cir. 2002).
Further review is not necessary if it is determined that an individual is not disabled at any
point in this sequential analysis. 20 C.F.R. § 404.1520(a). Here, the sequential analysis
proceeded to the fifth step with a finding that, although Plaintiff cannot perform his past
relevant work, there is a substantial number of jobs that exist in the national economy that
he can perform.

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The ALJ determined that the medical and other evidence of record was not
inconsistent with Plaintiff’s ability to perform a substantially full range of sedentary work
and that Plaintiff’s non-exertional limitations did not significantly compromise his ability to
perform unskilled sedentary work. Plaintiff argues that substantial evidence does not support
the ALJ’s findings. He specifically argues that the ALJ erred by not giving the proper weight
to the medical sources of record. Plaintiff also asserts that the ALJ did not consider his need
for strong medication and frequent rest and did not consider the mental restrictions that were
secondary to his seizures. The court find that substantial evidence supports the ALJ’s
determination because the medical evidence did not show that Plaintiff was as limited as he
claims.
Treatment records indicate a continued pattern of drug abuse. R. 1172, 1235, 1304,
1309, 1311, 1315, 1316, 1320, 13244, 1326, 1440, 1444. On one occasion, Plaintiff was
found unresponsive in a hotel room with a crack pipe and covered in feces. R. 274. Drug
testing was positive for cannabis and cocaine R. 753. He received antibiotics for treatment
of meningitis and was discharged in stable condition on July 10, 2007. R. 753.
An examination by Dennis Wilson, Ph.D., a clinical psychologist, dated June 2, 2009,
showed some depression but no noticeable current dementia. R. 589. Plaintiff was able to
perform serial seven subtractions; he could attend and concentrate; memory was intact; and
his communication and verbal skills were good. R. 587. Plaintiff admitted a significant
long-term history of drug abuse to Dr. Wilson. R. 585.

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Joe Allison, M.D., and Celia Gulbeck, M.D., state agency physicians, opined that
Plaintiff could perform medium work. R. 373-379, 669-676. The ALJ found that Plaintiff
was more limited than this. Because Plaintiff has a history of seizures, the ALJ limited him
from hazardous activities and climbing. However, Plaintiff’s inability to climb and be
exposed to hazards did not significantly erode his ability to perform sedentary work. See SSR
96-9p.
It is the ALJ’s responsibility to determine residual functional capacity based on all the
relevant evidence, including medical records, observations of treating physicians and others,
and the claimant’s own description of her limitations. See Anderson v. Shalala, 51 F.3d 777
(8th Cir. 1995); 20 C.F.R. §§ 416.945(a) & 416.946. Here, the ALJ considered all of the
evidence in the record and adequately explained the basis for his residual functional capacity
finding. As the ALJ’s residual functional capacity was within the “zone of choice” supported
by substantial evidence, his finding is upheld. See Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986) (en banc).
After finding that Plaintiff could not perform his past relevant work, at step five, the
ALJ determined that jobs exist in significant numbers that Plaintiff can perform by relying
on the medical-vocational guidelines (the “grids”). The grids are matrices of the four factors
identified by Congress, i.e., physical ability, age, education, and work experience, which set
forth rules that identify whether jobs requiring specific combinations of these factors exist
in significant numbers in the national economy. The grids provide a shortcut in certain

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circumstances in determining whether a claimant can perform other work. Daniels v. Apfel,
154 F.3d 1129, 1132 (10th Cir.1998), and the ALJ did not err in applying them in this case.
The ALJ found that Plaintiff’s psychological limitations would not significantly
compromise his ability to perform unskilled sedentary work. Unskilled work includes “the
ability (on a sustained basis) to understand, remember, and carry out simple instructions; to
respond appropriately to supervision, co-workers, and usual work situations; and to deal with
changes in a routine work setting.” SSR 85-15. Postural maneuvers such as climbing,
crouching, and crawling and exposure to hazards such as moving machinery and heights do
not erode the sedentary occupational base. See SSR 96-9p.
Grid Rule 201.28 applies to claimants like Plaintiff who are younger unskilled
individuals with a high school education and capable of performing sedentary work. Based
on these factors, the ALJ determined that the grid rules directed a finding of “not disabled.”
The application of the grid rules provided substantial evidence that allowed the
Commissioner to carry her burden of proving that other jobs exist in significant numbers in
the national economy that Plaintiff can perform despite his limitations.
In his reply brief, Plaintiff agues that the court should overturn the July 22, 2011,
unfavorable decision on his first application because he received an October 8, 2013,
favorable decision on his second application for benefits based on the same limitations
presented in this case. Plaintiff has cited no law in support of his argument, and the court
knows of none.

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Because there is substantial evidence in the record supporting the Commissioner's
decision denying Plaintiff's application for benefits, the decision of the Commissioner is
AFFIRMED. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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