McClure v. Commissioner of Social Security

Filing 17

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 12/1/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
A. DENNIS MCCLURE,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No: 1:14-cv-01301-STA-dkv

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 A. Dennis McClure filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying his applications for disability insurance benefits under
Title II of the Social Security Act (“Act”) and Supplemental Security Income (“SSI”) under Title
XVI.

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 January 4, 2013. On May 17, 2013, the ALJ issued a partially
favorable decision, finding that Plaintiff became disabled on January 1, 2012, which was after
his date last insured of September 30, 2011. The Appeals Council subsequently denied his
request for review. Thus, the decision of the ALJ became the Commissioner’s final decision.
For the reasons set forth below, the decision of the Commissioner is REVERSED, and the
action is REMANDED for additional testimony pursuant to sentence four of 42 U.S.C. § 405(g).
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
conclusion.7
Pursuant to sentence four, a district court may “enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of

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).
7

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
2

Social Security, with or without remanding the cause for a rehearing.”

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.”8

“A judicial award of

benefits is proper only where the proof of disability is overwhelming or where the proof of
disability is strong and evidence to the contrary is lacking.”9 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 February 28, 1965. In his disability report, he alleged disability due
to back pain, chronic obstructive pulmonary disorder (“COPD”), lung problems, emphysema,
and arthritis beginning October 13, 2007. He has an eleventh grade education and past work as
an electrician and truck driver.
The ALJ made the following findings: (1) Plaintiff met the insured status requirements
through September 30, 2011; (2) Plaintiff has not engaged in substantial gainful activity since the
alleged onset date; (3) since the alleged onset date, Plaintiff has had the following severe
impairments: disorder of the back status post old compression fracture of L1 and L3 and COPD;
beginning January 1, 2012, Plaintiff had the following additional impairments: major depressive
disorder and generalized anxiety disorder; (4) prior to January 1, 2012, Plaintiff did not have
impairments, either alone or in combination, that met or equaled the requirements of any listed
impairment contained in 20 C.F.R. pt. 404, subpt. P, app. 1 of the listing of impairments; (5)
prior to January 1, 2012, Plaintiff had the residual functional capacity to perform light work as

8

Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994) (citations omitted).

9

Id.
3

defined in 20 CFR 404.1567(b) and 416.967(b) except he was limited to frequent pushing and
pulling with the bilateral lower extremities; frequent balancing, kneeling, crouching and crawling
but only occasional stooping; occasionally climbing ramps and stairs with frequent climbing of
ladders, ropes, and scaffolds; he was limited to far acuity and must avoid concentrated exposure
to temperature extremes and humidity and should avoid moderate exposure to pulmonary
irritants; (6) since October 13, 2007, Plaintiff has been unable to perform any past relevant work;
(7) prior to the disability onset date, Plaintiff was a younger individual with a limited education;
(8) prior to January 1, 2012, transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework supported a finding that
Plaintiff was not disabled whether or not he had transferable skills; (9) prior to January 1, 2012,
considering Plaintiff’s age, education, work experience, and residual functional capacity, there
were jobs existing in significant numbers in the national economy that Plaintiff could perform;
(10) beginning on January 1, 2012, the severity of Plaintiff’s impairments met the criteria of §
12.04 of 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
416.920(d), and 416.925); (11) Plaintiff was not disabled prior to January 1, 2012, but became
disabled on that date and has continued to be disabled through the date of this decision; (12)
Plaintiff was not under a disability within the meaning of the Act at any time through September
30, 2011, the date last insured.10
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.11 The claimant bears the ultimate burden of establishing an entitlement to benefits.12

10

R. 17 – 23.

11

42 U.S.C. § 423(d)(1).

12

Born v. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir. 1990).
4

The initial burden of going forward is on the claimant to show that he or she is disabled from
engaging in his or her 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.13
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.14
Further review is not necessary if it is determined that an individual is not disabled at any
point in this sequential analysis.15 Here, the sequential analysis proceeded to the fifth step for the
time period related to the unfavorable portion of the decision with a finding that, although
Plaintiff cannot perform his past relevant work, there are a significant number of jobs existing in
the national economy that he can perform.

13

Id.

14

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

15

20 C.F.R. § 404.1520(a).
5

Plaintiff argues that substantial evidence does not support the ALJ’s findings.

He

specifically argues, inter alia, that the ALJ erred in his assessment of the medical evidence. The
Court finds Plaintiff’s argument to be persuasive concerning the report of consultative examiner
Dennis Wilson, Ph.D.
The ALJ found that, beginning on January 1, 2012, Plaintiff’s “onset of severe mental
impairments were of such severity that they were disabling.”16 The determinative issue for the
Court in this appeal is whether substantial evidence supports the ALJ’s determination that
Plaintiff’s mental impairments were not disabling prior to January 1, 2012, and, in particular,
prior to September 30, 2011, Plaintiff’s date last insured.

Thus, the issue is not whether

Plaintiff’s mental impairments are disabling but, instead, when did they become disabling.
In making his decision, the ALJ gave great weight to Dr. Wilson’s March 26, 2013,
opinion. The ALJ pointed out that Dr. Wilson determined that:
[T]he claimant exhibited signs and symptoms of dementia with agnosia and
disturbances of executive function. He further noted a good deal of cognitive
disorganization with responses that were somewhat evasive and irrelevant at
times. Although Dr. Wilson concluded that the claimant [had] some sort of
dementing type process that appeared quite advanced, he further noted being
unaware of any medical condition that would cause such dementia. … The
undersigned finds Dr. Wilson’s opinion generally supported by his examination
and the objective treating record; therefore, the undersigned credits it with great
weight in finding the claimant’s level of impairment is of listing level.17
Plaintiff argues his mental disability began prior to January 1, 2012. In support of his
argument, he points out that Dr. Wilson opined that Plaintiff had “some sort of dementing
process that seems quite advanced at this point.”18 The Commissioner responds that Plaintiff
16

R. 22.

17

Id.

18

R. 578 (emphasis added).
6

cites no opinion evidence suggesting an earlier onset date, nor does he point to pre-2012
evidence of impaired mental status to support a different date from the one chosen by the ALJ.
Contrary to the Commissioner’s argument and the ALJ’s decision, Dr. Wilson notes that
Laura Lie Russell, APRN, PC, opined on January 18, 2013, that Plaintiff had “cerebellar
degenerative disorder” which had disabled him for a year and a half.

Dr. Wilson also

commented that intake notes from Pathways dated January 13, 2012, indicated diagnoses of
major depressive order and generalized anxiety disorder. While these sources may not be
entitled to weight in deciding whether Plaintiff is disabled, they are evidence supporting an onset
date that predates January 1, 2012. “[E]vidence of a medical condition after the termination of
eligibility status must be considered to the extent that it casts light on claimant’s health before
that date.” 19 Although Dr. Wilson questioned Plaintiff’s “unusual symptoms,” he remarked that
“should the claimant have some sort of physical disorder such as Lewy Body Dementia,20 these
symptoms could be easily explained” and “any evidence of significant oxygen deprivation
secondary to his lung problems might support a diagnosis of dementia.”21
“Because of the substantive rights that might be impacted by the onset date
determination, SSR 83–20 emphasizes that “it is essential that the onset date be correctly
established and supported by the evidence ....”

22

Once a finding of disabled is made, “the

19

See Garland v. Shalala, 78 F.3d 584 (6th Cir. 1996) (“[T]he critical date is the date of onset of
disability, not the date of diagnosis”).
20

Lewy Body Dementia is “a degenerative cerebral disorder of the elderly, characterized initially
by progressive dementia or psychosis, and subsequently by parkinsonian findings, usually with
severe rigidity; other manifestations include involuntary movements, myoclonus, dysphagia, and
orthostatic hypotension.” Stedmans Medical Dictionary 254230 (Database updated November
2014).

21

R. 578.
7

established onset date must be fixed based on the facts and can never be inconsistent with the
medical evidence of record.”23 Based on a review of the entire record and in particular the
opinion of Dr. Wilson, the Court agrees with Plaintiff that substantial evidence does not support
the ALJ’s decision with respect to the onset date of his disabling mental impairments, and the
ALJ’s decision must be reversed and remanded to obtain medical testimony as to when
Plaintiff’s mental impairments became disabling.
Also concerning is that the ALJ found that, prior to January 1, 2012, Plaintiff could
occasionally climb ramps and stairs and frequently climb ladders, ropes, and scaffolds.24 In
making this determination, the ALJ relied, in part, on the opinion of Dr. Knika Chaudhuri.
However, Dr. Chaudhuri opined that Plaintiff could never climb ladders, ropes, or scaffolds.25
While this error, in and of itself, might not necessitate a remand, the error lends support to the
Court’s decision to remand the case for additional testimony. On remand, Plaintiff’s postural
limitations should be clarified.
Having found that the decision must be reversed, the Court must determine 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.
In summary, the decision of the Commissioner is REVERSED, and the action is
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for a reassessment of Plaintiff’s
22

Gardner v. Comm’r of Soc. Sec., 2012 WL 4450169 at *13 (E.D. Mich. Aug. 17, 2012),
report and recommendation adopted, 2012 WL 4450068 (E.D. Mich. Sept. 26, 2012).
23

Id. (citing SSR 83-20).

24

Finding No. 5 at R. 18 (emphasis added).

25

R. 20.
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postural limitations and additional testimony and fact-finding as to the onset date of his disabling
mental limitations. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: December 1, 2017.

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