Swift v. Commissioner of Social Security

Filing 18

ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G). Signed by Chief Judge S. Thomas Anderson on 6/6/17. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TERENCE LAVOUR SWIFT,

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Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Case No: 1:13-cv-01158-STA-egb

ORDER REVERSING THE DECISION OF THE COMMISSIONER AND
REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G)
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Plaintiff Terence Lavour Swift filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying his application for disability insurance benefits under
Title II of the Social Security Act (“the Act”) and an application for supplemental security
income (“SSI”) benefits based on disability under Title XVI of the Act. Plaintiff’s applications
were 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
September 8, 2011. On January 19, 2012, the ALJ issued a decision, finding that Plaintiff was
not entitled to benefits. The Appeals Council denied Plaintiff’s request for review, and, thus, the
decision of the ALJ became the Commissioner’s final decision. Plaintiff then filed for judicial
review in this Court. For the reasons set forth below, the decision of the Commissioner is
REVERSED, and the action is REMANDED for a reassessment of Plaintiff’s credibility and
the medical opinions in the record pursuant to sentence four of 42 U.S.C. § 405(g).

1

Under 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.”1 The Court’s review is limited to determining whether there is substantial
evidence to support the Commissioner’s decision,2 and whether the correct legal standards were
applied.3
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”4 It is “more than a mere scintilla of evidence, but less than a
preponderance.”5 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.6

When substantial evidence supports the Commissioner’s

determination, it is conclusive, even if substantial evidence also supports the opposite

1

42 U.S.C. § 405(g).

2

Id.

3

Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). See also Landsaw v. Sec’y of Health &
Human Servs, 803 F.2d 211, 213 (6th Cir. 1986).

4

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S.
389 (1971)).

5

Bell v. Comm'r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)).
6

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d
642, 644 (6th Cir. 1990); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
2

conclusion.7 “[W]hen there is not substantial evidence to support one of the ALJ’s factual
findings and his decision therefore must be reversed, the appropriate remedy is not to award
benefits. The case can be remanded under sentence four of 42 U.S.C. § 405(g) for further
consideration.”8
The Court may immediately award Plaintiff benefits “only if all essential factual issues
have been resolved and the record adequately establishes a plaintiff’s entitlement to benefits.”9
“A judicial award of benefits is proper only where the proof of disability is overwhelming or
[when] the proof of disability is strong and evidence to the contrary is lacking.”10 These factors
are not present in this case, and, therefore, an immediate award of benefits is not appropriate.
However, a remand pursuant to sentence four of § 405(g) is appropriate because all essential
issues have not been resolved.
Plaintiff was born on May 22, 1983, and has a ninth grade education. He previously
worked as a door manufacturing assembler, a sheet metal manufacturing shearer, and a material
handler. Plaintiff alleges disability beginning March 1, 2007, due to chronic asthma and back
and shoulder problems.
The ALJ enumerated the following findings: (1) Plaintiff met the insured status
requirements through March 1, 2007, the alleged onset date; (2) Plaintiff has not engaged in
substantial gainful activity since the alleged onset date; (3) Plaintiff has the following severe
impairment: asthma; but he does not have impairments, either alone or in combination, that meet
7

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004); Foster v. Halter, 279 F.3d
348, 353 (6th Cir. 2001); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
8

Faucher v. Secretary, 17 F.3d 171, 175 (6th Cir. 1994).

9

Id. at 176 (citations omitted).

10

Id.
3

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; (4) Plaintiff retains the residual functional capacity to perform a
full range of work at all exertional levels with no concentrated exposure to gases, fumes, dusts,
and temperature extremes; he is limited to routine tasks with an articulated production schedule
with minimum changes in the work setting so there is no need for independent goal-setting
judgments; (5) Plaintiff is unable to perform his past relevant work; (6) Plaintiff was a younger
individual with a limited education on the alleged onset date; (7) 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; (8) 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; (9) Plaintiff was not under a disability as defined in the Act at any time
through the date of this decision.11
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.12 The claimant bears the ultimate burden of establishing an entitlement to benefits.13
The initial burden of going forward is on the claimant to show that he is disabled 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.14

11

R. 16 – 21.

12

42 U.S.C. § 423(d)(1).

13

Born v. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir. 1990).

14

Id.
4

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 or she 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.15
Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.16 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.
Plaintiff argues that substantial evidence does not support the ALJ’s findings and that the
ALJ did not follow all the legal rules in making his decision. He specifically argues that the ALJ
failed to properly evaluate the medical opinion evidence and, instead, substituted her own
judgment as to Plaintiff’s cognitive abilities; did not adequately consider the impact of Plaintiff’s
mental limitations on his ability to work when making the residual functional capacity finding;
and failed to properly evaluate his credibility. The Court agrees that substantial evidence does

15

Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).

16

20 C.F.R. § 404.1520(a).
5

not support the decision denying Plaintiff’s applications for benefits and finds that a remand is in
order because the ALJ failed to correctly assess both the medical evidence in the record and
Plaintiff’s credibility.
Looking at the ALJ’s credibility assessment first, the Court finds several errors.
Although it is well-settled that the Commissioner is not required to fully credit subjective
complaints,17 substantial evidence cannot support a finding that is based on an inaccurate reading
of the record. In the present case, the ALJ relied greatly on what she perceived as evidence of
Plaintiff’s smoking and his denial thereof when assessing Plaintiff’s credibility. The totality of
this evidence consists of a generic smoking cessation pamphlet that was given to Plaintiff when
he was discharged from the hospital.18 According to the ALJ, a hospital would not have
provided Plaintiff with a smoking cessation pamphlet unless Plaintiff smoked, and, thus, she
concluded that “the record clearly shows he is a smoker.”19 The ALJ reached this conclusion
despite the fact that both Plaintiff and his mother testified that he no longer smoked and there
was no evidence from any medical provider that Plaintiff smoked at any relevant time. The
presence of an unexplained generic smoking pamphlet in the record cannot, without more,
support a finding that both Plaintiff and his mother gave untruthful testimony when they denied
that Plaintiff smoked. Thus, substantial evidence does not support this credibility finding.
Additionally, the ALJ found Plaintiff to have diminished credibility as to his cognitive
limitations because the vocational expert classified several of his past jobs as semi-skilled.
According to the ALJ, William Selby, the vocational expert, testified that a “person who is
17

Wooten v. Apfel, 108 F. Supp.2d, 921, 928 (E.D. Tenn. 2000) (citing Fraley v. Secretary of
Health & Human Servs., 773 F.2d 437, 440 (6th Cir. 1984)).
18

R. 610.

19

R. 18 – 19.
6

limited as reported by the claimant would not be capable of performing the jobs that the claimant
held for long enough to attain his insured status. In fact, the individual would not be able to hold
those jobs at all.”20 The ALJ misstated the vocational expert’s testimony. The ALJ asked the
vocational expert whether “someone who is mentally deficient would be capable of performing
semi-skilled jobs?”21 The vocational expert answered, “Usually a person who’s mentally
deficient would have trouble with semi-skilled jobs.”22 That is, the vocational expert merely
opined that someone who is mentally impaired to the degree claimed by Plaintiff might have
trouble performing a semi-skilled job – not that semi-skilled work was necessarily inconsistent
with mentally deficient intellectual functioning.23
The ALJ rejected Plaintiff’s claims of mental impairments based on her misreading of the
vocational expert’s testimony. “In light of the fact that the claimant previously performed semiskilled work, the assertions [of being “mentally challenged and unable to perform even unskilled
work”] are deemed wholly incredible.24 Additionally, “[T]he claimant is not deemed to have
provided any credible testimony as his presentation was wholly inconsistent with the record of
work and activities.”25

20

R. 16-17 (stating that the vocational expert testified that a person as mentally challenged as
Plaintiff claimed to be would not be able to hold and perform semi-skilled work).

21

R. 40.

22

Id. (emphasis added).

23

Furthermore, how a claimant performed a job is not necessarily how that job is generally
performed in the national economy according to the DOT. See SSR 82-61. Just because a job is
generally performed as semi-skilled does not mean that a claimant actually performed that job as
semi-skilled work.
24

R. 16 (emphasis added).

25

R. 19.
7

The ALJ’s misreading of the vocational expert’s testimony is particularly important in
light of the evidence in the record that Plaintiff does, in fact, suffer from mental limitations. For
example, examining psychologist Paul Brown, Ph.D., administered the Wechsler Adult
Intelligence Scale-IV (WAIS-IV) and obtained “moderately valid” and “moderately reliable”
data. Plaintiff had a Verbal Comprehension Index (VCI) of 74; a Working Memory (WMI) of
60; a Processing Speed (PSI) of 74; and a Full Scale IQ (FSIQ) of 64. The VCI and PSI were in
the borderline range, while the WMI and FSIQ were in the extremely low range.26 The Wide
Range Achievement Test-4 showed that Plaintiff had first-percentile Word Reading and Math
Computation.27 Dr. Brown observed abnormalities of mood, affect, memory, and computation
and diagnosed a depressive disorder not otherwise specified and mentally deficient range of
intellectual functioning.28
Dr. Brown opined that Plaintiff had a [m]oderate limitation with respect to understanding
and remembering simple or detailed instructions and mild to moderate limitations of his abilities
to maintain schedules and attendance; sustain concentration for at least a two-hour period; persist
during a workday or workweek without interruption from psychological symptoms; and work in
coordination with and/or proximity to others without being distracted by them.29 The ALJ’s
residual functional capacity assessment does not reflect any such limitations. Dr. Brown also
reported that Plaintiff had mild to moderate limitations of his abilities to maintain socially
appropriate behavior, interact appropriately with coworkers, accept instructions, and respond
26

R. 464.

27

Id.

28

R. 461 - 66.

29

R. 465-66.
8

appropriately to criticism from supervisors.30 The ALJ’s residual functional capacity assessment
does not include any social limitations.31

Dr. Brown’s opinions were based not only on

Plaintiff’s limited intellect but also on Plaintiff’s depressive disorder, which was not addressed
by the ALJ.32 Although the ALJ did not have to accept the mental limitations found by Dr.
Brown, she could not rely on a misreading of the record and an improper weighing of Plaintiff’s
credibility to reject the opinion of Dr. Brown or any other expert.
Moreover, the ALJ failed to address whether Plaintiff performed his purportedly semiskilled jobs long enough to learn how to do them at the semi-skilled level. For example, the
vocational expert stated that one of Plaintiff’s past jobs was classified as a “shearer in sheet
metal manufacturing” with the SVP of 4.33

The only job Plaintiff described as involving

shearing was for Manpower Staffing for less than two months.34 This type of job requires over
three months and up to six months to learn.35 Substantial evidence does not support the ALJ’s
rejection of Dr. Brown’s opinion based on Plaintiff’s purported past work when the ALJ did not
consider evidence that Plaintiff did not perform that work long enough to learn how to do it at
the semi-skilled level.
30

R. 466.

31

The only mental limitation in the residual functional capacity finding is that Plaintiff is limited
to routine tasks with an articulated production schedule with minimum changes in the work
setting so there is no need for independent goal-setting judgments. R. 18.

32

Dr. Brown’s opinion was bolstered by the opinion of Norma J. Calway-Fagen, Ph.D. who
determined that Plaintiff had borderline intellectual functioning, as well as a depressive disorder
not otherwise specified. R. 541 - 56.
33

R. 39.

34

R. 190 - 194 (“4/29/07” - “6/20/07”; “2/14/08” - “2/15/08”).

35

DOT, App. C (“Over 3 months up to and including 6 months”).
9

A remand is necessary in light of the ALJ’s reliance on Plaintiff’s work history to reject
Dr. Brown’s opinion given that the ALJ (1) misstated the vocational expert’s testimony; (2) did
not consider the DOT’s classification of work as generally performed with work as actually
performed; and (3) failed to evaluate how long Plaintiff worked at his jobs.36 Moreover, a
remand is necessitated by the ALJ’s credibility assessment of Plaintiff based on an inaccurate
interpretation of the evidence; this inaccuracy cannot constitute substantial evidence to support a
denial of benefits. While any one of these errors, in and of itself, might not warrant a remand,
combined they lead to the conclusion that the decision denying Plaintiff’s applications for
benefits must be reversed. On remand, Plaintiff’s credibility and the medical opinion evidence
must be reevaluated with a correct reading of the record.
Having determined that the decision must be reversed, the Court must decide whether it
is appropriate to remand this case or to direct the payment of benefits. Because the record does
not establish that Plaintiff is entitled to benefits or that all essential facts have been resolved, it is
appropriate to remand this case for further proceedings. The decision of the Commissioner is
REVERSED, and the action is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date:

36

June 6, 2017.

See Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515, 527 (6th Cir. 2014) (“Although the
record contains some evidence supporting the ALJ’s decision to accord Papadakis’ opinion little
weight, it is not clear that the ALJ would have come to the same conclusion had she not
mischaracterized the record….”)

10