Hernandez v. Colvin, Case No: 4:13-CV-67 (Mattice/Carter)

CourtUnited States District Courts. 6th Circuit. Eastern District of Tennessee
Writing for the CourtWilliam B. Mitchell Carter UNITED STATES MAGISTRATE JUDGE
Decision Date20 March 2015
PartiesZENA DIANE HERNANDEZ, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
Docket NumberCase No: 4:13-CV-67 (Mattice/Carter)

ZENA DIANE HERNANDEZ, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

Case No: 4:13-CV-67 (Mattice/Carter)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

March 20, 2015


REPORT AND RECOMMENDATION

This action was instituted pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner denying the plaintiff a period of disability and disability insurance benefits, Title II of the Social Security Act, 42 U.S.C. §§ 416(I), 423.

This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure for a report and recommendation regarding the disposition of Plaintiff's Motion for Judgment on the Administrative Record (Doc. 16) and Defendant's Motion for Summary Judgment (Doc. 17).

For the reasons stated herein, I RECOMMEND the decision of the Commissioner be AFFIRMED.

Plaintiff's Age, Education, and Past Work Experience

Plaintiff was 44 years old with an 11th grade education when the ALJ rendered his August 2012 decision (Tr. 21, 231, 277). Plaintiff had past work as a lead trainer, assembly line worker, housekeeper, and shipper/loader (Tr. 273, 283-90).

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Applications for Benefits

On September 4, 2009, Plaintiff protectively filed for disability insurance benefits ("DIB") with an alleged disability onset date (as amended) of October 7, 2009 (Tr. 231-32, 279). Plaintiff alleged that she was disabled due to carpal tunnel syndrome in both hands, lower back problems, and migraines (Tr. 272). After Plaintiff's claim was denied initially and on reconsideration (Tr. 95-96, 124-27, 129-31), an Administrative Law Judge ("ALJ") held a hearing and issued an unfavorable decision on July 29, 2011 (Tr. 67-92, 97-117). On January 1, 2012, the Appeals Council remanded the case to an ALJ (Tr. 118-23). Another hearing was held on July 3, 2012, and, on August 9, 2012, the ALJ issued an unfavorable decision on remand (Tr. 21-66). The ALJ found Plaintiff had not been under a disability from October 7, 2009 through the date of the decision (Tr. 37). On September 7, 2012, Plaintiff filed a request for review of the ALJ's decision (Tr. 14-21). The Appeals Council denied Plaintiff's request for review (Tr. 1-5), and the Commissioner's decision is ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

Standard of Review - Findings of the ALJ

To establish disability under the Social Security Act, a claimant must establish he/she is unable to engage in any substantial gainful activity due to the existence of "a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). The Commissioner employs a five-step sequential evaluation to determine whether an adult claimant is disabled. 20 C.F.R. § 404.1520. The following five issues are addressed in order: (1) if the claimant is engaging in substantial gainful activity he/she is not disabled; (2) if the claimant does not have a severe impairment he/she is not disabled; (3) if the claimant's impairment meets or equals a

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listed impairment he/she is disabled; (4) if the claimant is capable of returning to work he/she has done in the past he/she is not disabled; (5) if the claimant can do other work that exists in significant numbers in the regional or the national economy he/she is not disabled. Id. If the ALJ makes a dispositive finding at any step, the inquiry ends without proceeding to the next step. 20 C.F.R. § 404.1520; Skinner v. Secretary of Health & Human Servs., 902 F.2d 447, 449-50 (6th Cir. 1990). Once, however, the claimant makes a prima facie case that he/she cannot return to his/her former occupation, the burden shifts to the Commissioner to show that there is work in the national economy which he/she can perform considering his/her age, education and work experience. Richardson v. Secretary, Health and Human Servs., 735 F.2d 962, 964 (6th Cir. 1984); Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).

The standard of judicial review by this Court is whether the findings of the Commissioner are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 92 S. Ct. 1420 (1971); Landsaw v. Secretary, Health and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Even if there is evidence on the other side, if there is evidence to support the Commissioner's findings they must be affirmed. Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The Court may not reweigh the evidence and substitute its own judgment for that of the Commissioner merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard allows considerable latitude to administrative decision makers. It presupposes there is a zone of choice within which the decision makers can go either way, without interference by the courts. Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Secretary, Health and Human Servs., 790 F.2d 450 n. 4 (6th Cir. 1986).

After considering the entire record, the ALJ made the following findings:

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1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.

2. The claimant has not engaged in substantial gainful activity since October 7, 2009, the alleged onset date (20 CFR 404.1571, et seq).

3. The claimant has the following severe impairments: carpal tunnel syndrome, status post bilateral releases; degenerative disc disease of the thoracic and lumbar spine; obesity; major depressive disorder, anxiety; and borderline intellectual functioning (20 CFR 404.1520(c)).

4. 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 404.1520(d), 404.1525, 404.1526).

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant could perform only occasional handling. However, fingering, feeling, and reaching are not significantly limited. The claimant could perform simple, 1-3 step tasks with infrequent work changes.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant was born on ___ ___, 1967 and was 42 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.156).

8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564).

9. 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 (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. 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 claimant can perform (20 CFR 404.1569 and 404.1569(a)).

11. The claimant has not been under a disability, as defined in the Social

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Security Act, from October 7, 2009, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 26-37).

Issue Presented

Plaintiff raises 6 issues in her brief :

A. The ALJ erred by assigning "great weight" to the opinions of Dr. Petro and Dr. Millis, yet failing to include significant limitations from these opinions in his residual functional capacity finding without addressing or resolving these significant inconsistencies.

B. The ALJ erred by failing to consider or evaluate Plaintiff's mental impairments and resulting functional limitations as required by 20 CFR 404.1520a and 416.920a.

C. The ALJ erred by failing to properly evaluate the opinion of Plaintiff's treating physician, Dr. Parawan, as required by statute, case law, and applicable rulings (SSR 96-2p).

D. The ALJ significantly misrepresented and/or mischaracterized critical evidence of record regarding the severity of Plaintiff's impairments and the credibility of her allegations.

E. The ALJ erred in failing to properly consider and address the vocational expert's testimony regarding his RFC finding and the available occupational base.

F. The ALJ erred by failing to properly consider or evaluate the observations and allegations of Plaintiff's sister regarding the severity of her impairments, as required by SSR 06-3p and 20 CFR 404.1513(d)(4) and 416.913(d)(4).

(Doc 16-1, Issues A-E, p. 1-2).

The Commissioner in response reorganized those issues in the order of the sequential evaluation process and in so doing grouped issues A and C because they both relate to the evaluation of various physicians in the record. I conclude that treatment of the issues in this

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order is reasonable and will address them as reorganized.

Relevant Facts

Plaintiff's medical treatment is set forth in detail in the ALJ's Administrative Decision (Tr. 26-35) and in the parties' Brief and Memorandum. I will not repeat it here but will refer to relevant portions in the analysis section.

Analysis

A. The ALJ's Evaluation of Plaintiff's Mental Impairments at Steps Two and Three of the Sequential Evaluation Process.

Plaintiff argues the ALJ failed to comply with the procedure for evaluating mental impairments set forth in 20 C.F.R. § 404.1520a (Doc 16-1, Plaintiff's Brief at 11). For reasons that follow, I do not agree. I conclude that the ALJ properly considered the evidence regarding Plaintiff's mental condition and incorporated the psychiatric review technique mode of analysis into his decision (Tr. 27). See 20 C.F.R. § 404.1520a (b), (c), (e)(4).

The ALJ rated...

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