Bumpus v. Nancy A. Berryhill Acting Comm'r of Soc. Sec., 3:12-0541

• Decision Date: 27 March 2017
• Docket Number: No. 3:12-0541,3:12-0541
• Parties: PHILLIP BUMPUS v. NANCY A. BERRYHILL Acting Commissioner of Social Security
• Court: U.S. District Court — Middle District of Tennessee

PHILLIP BUMPUS v. NANCY A. BERRYHILL¹ Acting Commissioner of Social Security

No. 3:12-0541

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

March 27, 2017

Magistrate Judge Holmes

MEMORANDUM

Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of the final decision of the Social Security Administration ("SSA") partially denying Plaintiff's claim for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI"), as provided under Title II and XVI of the Social Security Act ("the Act").² The case is currently pending on Plaintiff's motion for judgment on the administrative record (Docket Entry No. 12), to which Defendant has responded (Docket Entry No. 13). Plaintiff has also filed a subsequent reply to Defendant's response (Docket Entry No. 14-1). This action is before the undersigned for all further proceedings pursuant to the consent of the parties and the District Judge in accordance with 28 U.S.C. § 636 (c) (Docket Entry No. 22).

Upon review of the administrative record as a whole and consideration of the parties' filings, Plaintiff's motion is GRANTED. For the reasons stated herein, the Court REVERSES the decision of the Commissioner and REMANDS this case for further administrative proceedings.

I. INTRODUCTION

Plaintiff filed an application for a period of disability, DIB, and SSI on September 12, 2008. See Transcript of the Administrative Record (Docket Entry No. 10), at 72-77.³ He alleged a disability onset date of November 1, 2002, which was later amended to June 4, 2004. AR 12, 72-77, 138. Plaintiff asserted that he was unable to work because of neck and back pain, past surgeries, medication side effects, and depression. AR 73, 75, 138.

Plaintiff's applications were denied initially and upon reconsideration. AR 72-77. Pursuant to his request for a hearing before an administrative law judge ("ALJ"), Plaintiff appeared with his counsel and testified at a hearing before ALJ Brian Dougherty on July 21, 2010. AR 27. On August 16, 2010, the ALJ entered a partially favorable decision. AR 8-10. The ALJ determined that Plaintiff was not disabled prior to May 1, 2008, but was disabled from May 1, 2008 through the date of the ALJ decision. AR 12-22. On April 20, 2012, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (AR 1-3), thereby making the ALJ's decision the final decision of the Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).

II. THE ALJ FINDINGS

The ALJ issued a partially favorable decision on August 16, 2010. AR 8-10. Based upon the record, the ALJ made the following enumerated findings:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2006.

2. The claimant has not engaged in substantial gainful activity since the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

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3. Since the amended alleged onset date of disability, June 4, 2004, the claimant has had the following severe impairments: cervical spondylosis and lumbar degenerative disc disease, status post two lumbar spine surgeries. Beginning on the established onset date of disability, May 1, 2008, the claimant has had the following severe impairments: cervical spondylosis and lumbar degenerative disc disease, status post two lumbar spine surgeries, along with bilateral shoulder impingement syndrome (20 CFR 404.1520(c) and 416.920(c)).

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4. Since the amended alleged onset date of disability, June 4, 2004, the claimant has not had an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).

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5. After careful consideration of the entire record, the undersigned finds that prior to May 1, 2008, the date the claimant became disabled, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that he could sit for six hours in an eight-hour workday, and he could stand or walk for six hours in an eight-hour workday with the use of a cane.

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6. After careful consideration of the entire record, the undersigned finds that beginning on May 1, 2008, the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he is now subject to the additional limitations expressed in the February 17, 2009 opinion of treating physician Thomas O'Brien, M.D., found at exhibit 10F. He can lift up to ten pounds occasionally. He can sit, stand, or walk for up to two hours each, both at one time and cumulatively over the course of an eight-hourworkday. He is restricted to occasional use of the right hand for reaching, handling, fingering, feeling, pushing, or pulling activities. He can only occasionally use either foot for the operation of foot controls. He can only occasionally perform all postural activities. He can have no more than occasional exposure to unprotected heights or moving machinery, and he can no more than occasionally operate a motor vehicle.

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7. Since June 4, 2004, the claimant has been unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

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8. Prior to the established disability onset date, the claimant was a younger individual age 18-44. The claimant's age category has not changed since the established disability onset date (20 CFR 404.1563 and 416.963).

9. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

10. Prior to May 1, 2008, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled" whether or not the claimant has transferable job skills. Beginning on May 1, 2008, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

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11. Prior to May 1, 2008, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).

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12. Beginning on May 1, 2008, considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 414.1560(c), 404.1566, 416.960(c), and 416.966).

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13. The claimant was not disabled prior to May 1, 2008, but became disabled on that date and has continued to be disabled through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

AR 14-22.

III. REVIEW OF THE RECORD

The parties and the ALJ have thoroughly summarized and discussed the medical and testimonial evidence of the administrative record. Accordingly, the Court will discuss those matters only to the extent necessary to analyze the parties' arguments.

IV. DISCUSSION AND CONCLUSIONS OF LAW

A. Standard of Review

The determination of disability under the Act is an administrative decision. The only questions before this Court upon judicial review are: (i) whether the decision of the Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). See Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining substantial evidence standard in context of Social Security cases); Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010). The Commissioner's decision must be affirmed if it is supported by substantial evidence, "even if there is substantial evidence in the record that would have supported an opposite conclusion." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).

Substantial evidence is defined as "more than a mere scintilla" and "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938)); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting language substantially similar to that in Richardson).

The Court's review of the Commissioner's decision is limited to the record made in the administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). A reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ's explicit findings and determination unless the record as a whole is without substantial evidence to support the ALJ's determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec'y of Health & Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).

B. Determining Disability at the Administrative Level

The claimant has the ultimate burden of establishing an entitlement to benefits by proving his "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by...