United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge
Sandy Davis brings this matter under 42 U.S.C. § 405(g)
seeking judicial review of an administrative decision of the
Acting Commissioner of Social Security. The Court, having
reviewed the record and the cross motions for summary
judgment filed by the parties, will REVERSE
and REMAND the Commissioner's decision
so that the ALJ can review and provide specific reasons for
the weight assigned to the medical opinions of treating
source physician, Dr. Mohammad Shahzad.
Standard for Determining Disability
the Social Security Act, a disability is defined as
“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. §
423(d)(1)(A). 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 past relevant
work; and, if necessary, 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).
Procedural and Factual History
initially filed an application for Disability Insurance
Benefits (DIB) on May 19, 2014, alleging disability as of
May 28, 2010. [TR 14, 575, 667-68, 679]. Davis alleged
disability due to fibromyalgia, arthritis, bipolar disorder,
mitral valve prolapse, high blood pressure, depression, back
injury, hypothyroidism, high cholesterol, and being
overweight. [TR 683]. Davis's claim was denied initially
and upon review. [TR 602-05, 611-17].
Davis pursued her claims at an administrative hearing in
front of ALJ Gloria B. York. [TR 547-74]. Davis was
represented by an attorney at the hearing. Davis testified
that her pain and depression prevented her from working. [TR
554]. Specifically, Davis testified that she had pain in her
neck, shoulders, arms, hands, legs, hips, and back due to
arthritis. [TR 555]. Davis testified that she took
prescription medications Meloxicam and Topamax for her
Davis testified that she had surgery on her neck in 2015 due
to arthritis and spinal stenosis. [TR 556]. Furthermore,
Davis testified that the surgery resulted in some improvement
with shooting headaches but that she still suffered from
headaches and neck pain. [Id.]. Davis testified that
she has headaches three to four times per week lasting for
several hours. [TR 557].
also explained that she was being treated for sleep apnea.
[TR 558]. Davis testified that she does not get much sleep at
night because of her sleep apnea. [TR 558]. Davis explained
that she uses oxygen and a CPAP device when she sleeps to
treat her sleep apnea. [Id.].
also had surgery on her left shoulder and testified that the
surgery had not helped but that the procedure was done eight
weeks before the administrative hearing. [Id.].
Additionally, Davis testified that she had surgery the day
before the administrative hearing on her left hand due to
carpal tunnel syndrome. [Id.]. Davis explained that
the carpal tunnel syndrome resulted in numbness, pain, and
tingling in her left arm and hand. [TR 559]. Still, Davis
said that it was too early to tell if the surgery on her left
hand had improved her symptoms resulting from carpal tunnel
Davis testified that she had bipolar disorder and depression.
[Id.]. Davis explained that she cries often and does
not enjoy being around crowds of people due to these
conditions. [Id.]. Davis stated that she took
prescription medications Abilify and Celexa and that these
medications “help some” with these medical
issues. [TR 559-60].
Davis explained that she suffered from mitral valve prolapse,
which causes her heart to flutter when she walks long
distances. [TR 560]. Davis stated that she takes Metoprolol
for this medical issue. [TR 561]. Also, Davis testified that
she suffered from a thyroid problem that results in fatigue.
the ALJ asked Davis about her home life and social
activities. Davis testified that she lived with her husband
and three children. [TR 561]. Additionally, Davis testified
that she did some routine chores and could cook for herself
and her family. [TR 562]. Davis explained that she did the
grocery shopping with the help of her husband or children.
[Id.]. Davis also explained that she drove every
day, watched television, and talked to her mother daily. [TR
563]. Even so, Davis stated that she did not go to church
because she felt uncomfortable but that she did attend school
events and meetings for her children. [TR 564].
testified that she could lift approximately ten pounds, could
sit for around twenty minutes, but that she had to move often
to get comfortable and could not use her left arm much. [TR
564-65]. In addition to Davis, a vocational expert, Martha
Goss, testified at the administrative hearing. [TR 567-72].
August 10, 2016, the ALJ issued an unfavorable decision. [TR
11-27]. At step one of the sequential analysis, the ALJ
determined that Davis had not engaged in any substantial
gainful activity during the period from the alleged onset
date of May 28, 2010, through the date last insured of
December 31, 2015. [TR 14]. At the second sequential step,
the ALJ determined that Davis suffered from the following
severe impairments: chronic neck pain, chronic low back pain
with degenerative disc disease, chronic left shoulder pain, a
left carpal tunnel syndrome, hypertension, obesity,
hypothyroidism, a depressive disorder, and generalized
anxiety disorder. [Id.].
three, the ALJ determined that through the date last insured,
Davis did not have an impairment or combination of
impairments that met or equaled the severity of one of the
listed impairments. [Id.].
four, the ALJ found that Davis's medically determinable
impairments could cause the alleged symptoms but that
Davis's statements concerning the severity of the
symptoms were not supported by the evidence in the record.
[TR 22]. As a result, the ALJ found that Davis had the
residual function capacity to perform a limited range of
light work. [TR 17].
the ALJ considered Davis's testimony about her health
issues, discussing Davis's severe arthritis. [TR 18]. The
ALJ noted that Davis underwent fusion surgery on her cervical
spine in 2015. [Id.]. The ALJ also discussed
Davis's arthroscopic surgery to her left shoulder that
occurred approximately two months before the administrative
hearing. [Id.]. Additionally, the ALJ discussed
Davis's anxiety and depression, noting that she does not
enjoy crowds and that she takes prescription medications
Abilify and Celexa, which helped partially. [Id.].
the ALJ considered Davis's functional capacity and daily
activities. The ALJ noted that Davis could perform routine
household chores at a slow pace, that Davis shops while
accompanied by a family member, that she drives her children
to and from school daily, and that she interacts with friends
and family members. [Id.]. The ALJ noted, however,
that Davis did not enjoy crowds and estimated that she could
only stand between ten to fifteen minutes and walk 75 to 100
feet. [TR 18-19]. The ALJ also considered Davis's
inability to sit for more than ten to twenty minutes. [TR
19]. Additionally, the ALJ noted that Davis sleeps poorly and
drops things due to hand and arm symptoms. [Id.].
Furthermore, the ALJ considered a third-party report from
Ronnie Davis, the claimant's husband, stating that the
claimant completed chores slowly, had difficulty raising her
arms, and could not stand or walk for long periods of time.
also considered medical evidence from a variety of sources.
[TR 19-22]. For instance, the ALJ considered the results of a
consultative examination conducted by Dr. Barry Burchett, an
agency medical consultant. [TR 19]. Additionally, the ALJ
considered evidence from Davis's long-time primary care
physician, Dr. Mohammad Shahzad. [TR 20]. The ALJ also
considered medical evidence provided by the Stanford Medical
Park where Davis was treated by nurse practitioners while
also under the care of Dr. Shahzad. [Id.].
Furthermore, the ALJ considered medical evidence and records
provided by orthopedic surgeons Drs. Robert Knetsche and
Janak Talwalker, a state agency medical consultant, Dr. Donna
Sadler, and a consultative psychologist, Dr. Jennifer
Fishkoff, among others. [TR 18-21].
five, the ALJ concluded that Davis could not perform any past
relevant work but that there were jobs that existed in
significant numbers in the economy that Davis could have
performed through the date last insured. [TR 24-26]. In
making this finding, the ALJ considered the testimony of a
vocational expert and the dictionary of occupational titles
(“DOT”). [TR 25-26].
Appeals Council denied review of Davis's claim on August
22, 2017. [TR 1-4]. Having exhausted her administrative
remedies, Davis pursued judicial review by filing this action
on October 3, 2017. [DE 1]. Pursuant to the Court's
Standing Scheduling Order [DE 9], Davis moved for summary
judgment on March 15, 2018, [DE 10] and the Commissioner
moved for summary judgment on April 13, 2018 [DE 12]. As a
result, this matter is ripe for review.
Standard of Review
reviewing the ALJ's decision, this Court may not
“try the case de novo, resolve conflicts in
evidence, or decide questions of credibility.”
Ulman v. Comm'r of Soc. Sec, 693 F.3d 709, 713
(6th Cir. 2012). This Court determines only whether the
ALJ's ruling is supported by substantial evidence and was
made pursuant to proper legal standards. Cutlip v.
Sec'y of Health & Human Servs., 25 F.3d
284, 286 (6th Cir. 1994). “Substantial evidence”
is defined as “more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. The Court is to affirm the
decision, provided it is supported by substantial evidence,
even if this Court might have decided the case differently.
See Her v. Comm'r of Soc. Sec., 203 F.3d 388,
389-90 (6th Cir. 1999).
so, the existence of substantial evidence supporting the
Commissioner's decision cannot excuse failure of an ALJ
to follow a mandatory regulation that “is intended to
confer a procedural protection” for the claimant.
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541,
543, 546-47 (6th Cir. 2004). “To hold otherwise ...
would afford the Commissioner the ability [to] violate the
regulation with impunity and render the protections promised
therein illusory.” Id. at 546; see also
Cole v. Comm'r of Soc. Sec., 661 F.3d 931, 937 (6th
Cir. 2011) (“An ALJ's failure to follow agency
rules and regulations ‘denotes a lack of substantial
evidence, even where the conclusion of the ALJ may be
justified based upon the record.'” (quoting
Blakley v. Comm'r of Soc. Sec., 581 F.3d 399,
409 (6th Cir. 2009))).
raises three main issues in this action. [See DE 10-1 at 2-3,
7, Page ID # 1230-31, 1235]. First, Davis argues that the ALJ
erred at step three of the sequential analysis by failing to
fully consider whether Davis met or equaled the requirements
for listing 1.04A. Second, Davis claims that the ALJ failed
to properly assign controlling weight to the medical opinions
of treating source physician, Dr. Mohammad Shahzad. Third,
Davis asserts that the ALJ excluded relevant impairments when
considering Davis's residual function capacity.
Consideration of Relevant Medical Evidence in Determining
Whether Davis Met Listing 1.04A
Davis argues that the ALJ erred at step three of the
sequential analysis by failing to fully consider listing
1.04A and by failing to provide an adequate explanation for
why Davis failed to meet or equal the 1.04A listing standard.
plaintiff has the ultimate burden to establish entitlement to
benefits by proving the existence of a disability . . .
.” Wyatt v. Sec'y of Health & Human
Servs., 974 F.2d 680, 683 (6th Cir. 1992). Thus, at step
three Davis had the burden of proving that her impairment or
combination of impairments met or equaled all the criteria
for a listed impairment. Sullivan ...