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Simpson v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, London

September 27, 2018

NANCY A. BERRYHILL., Deputy Commissioner of Operations of the Social Security Administration, Defendant.


          Joseph M. Hood Senior U.S. District Judge

         Plaintiff Danny Edward Simpson (“Simpson”) brings this matter under 42 U.S.C. § 405(g) seeking judicial review of an administrative decision of the Commissioner of Social Security denying his applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The Court, having reviewed the record, will AFFIRM the Commissioner's decision as it is supported by substantial evidence.


         In determining disability, an Administrative Law Judge (“ALJ”) uses a five-step analysis. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). Step One considers whether the claimant is still performing substantial gainful activity; Step Two, whether any of the claimant's impairments are “severe”; Step Three, whether the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether the claimant can still perform his past relevant work; and Step Five, whether significant numbers of other jobs exist in the national economy which the claimant can perform. As to the last step, the burden of proof shifts from the claimant to the Commissioner. Id.; see also Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).


         Plaintiff filed his applications for benefits, alleging disability beginning in June 2013. (Tr. (Tr. 18, 223-37, 259). The claim was denied initially and upon reconsideration. After a hearing, Administrative Law Judge (“ALJ”) Peter Jung denied Plaintiff's claims on December 16, 2015. (15-30) . The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied review of the ALJ's ruling. [TR 1-7]. This appeal followed pursuant to 42 U.S.C. § 405(g). Consistent with the Court's Standing Scheduling Order, the parties have submitted cross motions for summary judgment, which are ripe for review. (DE 13, 15).

         Plaintiff completed the first-half of the twelfth grade and later earned a General Equivalency Diploma (GED) (Tr. 78). He worked in coal mines for 13 years and then attended vocational training in automotive technology (Tr. 78-79, 264, 281). He indicated, however, that following his coal mining work, he could not bend over a car long enough to work on it (Tr. 79). Plaintiff thus worked in contract labor and as an electrician for a few years, and then was a maintenance mechanic for the public housing authority for 12 years until he stopped working in mid-2013 (Tr. 264, 281). As a maintenance mechanic, Plaintiff was responsible for up to 100 housing units at a time and was on call 24-7, five days per week (Tr. 79-80, 83, 285). job required that he do a large variety of tasks, including picking up trash, moving furniture, yard work, painting, and working on water heaters, gas furnace heaters, stoves, and refrigerators (Tr.79-80, 285). Plaintiff indicated that he left his maintenance mechanic job because “my nerves and my body just couldn't take it” any longer (Tr. 83).


         The treatment notes of record reflected that, once every few months, Plaintiff saw care providers at Pine Mountain Clinic (PMC)2 for medication refills, maintenance, and general medical needs (see Tr. 365-520). PMC care providers monitored and prescribed medications for Plaintiff's chronic conditions, which included hypertension, hyperlipidemia, allergies, and backache (see Tr. 365). Plaintiff also complained of joint pain, especially in his hands, but a rheumatoid workup was negative (see Tr. 343-47, 382). When Plaintiff complained of increased low back pain in mid-2013, care providers ordered lumbar imaging (see Tr. 351-52, 354, 411-13). A lumbar MRI showed significant degenerative changes at the L4-L5 vertebrae level, with a bulging disc and stenosis (Tr. 352). Except for an aggravation of back pain in mid-2013 (see Tr. 410, 413), the record indicated PMC care providers assessed Plaintiff's back pain as controlled with medications throughout the entire relevant time period (Tr. 365, 369, 372, 376, 380, 384, 388, 392, 395, 398, 404, 407).

         In November 2014, Plaintiff saw Aaron Fain, M.D., for a consultative physical examination in connection with his disability claims (see Tr. 357-61). Plaintiff's main complaint was his low back, which he said had been hurting since the late 1990s as a result of working in coal mines (Tr. 358). Dr. Fain noted that Plaintiff did not use any assistive devices such as a cane, walker, wheelchair, or brace (Tr. 359). On examination, Dr. Fain found that Plaintiff was able to toe walk, heel walk, squat, and get on and off the examination table without difficulty or assistance (Tr.360). Plaintiff had decreased grip strength but full leg and arm strength, full range of motion, normal reflexes, and intact sensation (Tr. 360). Dr. Fain found that Plaintiff had moderate degenerative changes in his low back, likely from prolonged heavy labor (Tr. 361).

         State agency physician Marcus Whitman, M.D., reviewed the record in December 2014 and opined that Plaintiff retained the ability to perform a range of light exertional work (Tr. 97-103). In February 2012, state agency physician P. Saranga, M.D., reviewed the record and also opined that Plaintiff could perform a range of light work (Tr. 126-30).

         Plaintiff and his attorney appeared at a March 2016 administrative hearing where an ALJ heard testimony from Plaintiff and a vocational expert (Tr. 72-93). Plaintiff testified that no one could read his handwriting because he had arthritis in his hands and could not hold on to anything (Tr. 78, 82). He said he could not work due to pain in his hands and back, and bursitis in his shoulders (Tr. 81-82). When he was asked if he thought he could perform work that would allow him to sit and stand at will, such as an inspector job, Plaintiff indicated he did not know if he had the attention span for it (Tr. 87).

         After the hearing, the ALJ issued a March 2016 decision that followed the regulatory five-step sequential evaluation described above in determining that Plaintiff was not disabled (see Tr. 18-26). See 20 C.F.R. § 404.1520(a)(4). The ALJ found that, although Plaintiff had severe impairments including degenerative disc disease of the lumbar spine, obesity, hypertension, hyperlipidemia, and osteoarthritis of the hands, his condition did not meet or medically equal the criteria of any per se disabling impairment listed at 20 C.F.R. pt. 404, subpt. P, app. 1 (the Listings) (Tr. 20-21). The ALJ next found that, notwithstanding his impairments, Plaintiff retained the residual functional capacity (RFC)3 for a limited range of light exertional testimony in finding that Plaintiff could perform other work existing in the national economy and was thus not disabled within work (Tr. 21-24). The ALJ then relied on vocational expert the meaning of the Act (Tr. 24-26).

         Plaintiff first argues that the ALJ acted “[c]ontrary to the clear requirements of [Social Security Ruling] 16-3p” because he “did not consider” an agency employee's observations of Plaintiff during an interview (see Doc. 13, Pl. Br. 4). The record refutes Plaintiff's argument. Not only did the ALJ state that he considered all the evidence of record (Tr. 21), but he also included the agency employee's report as Exhibit 1E in the list of exhibits he considered. Plaintiff's argument is further undermined by the distinction between the ALJ's duty to consider evidence and the ALJ's duty to discuss evidence. Thacker v. Comm'r of Soc. Sec., 99 Fed.Appx. 661, 665 (6th Cir. 2004) (unpublished). Consistent with Thacker, the Court shall find that the ALJ's lack of a discussion of ...

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