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Davis v. Berryhill

United States District Court, E.D. Kentucky, Central Division, Lexington

November 1, 2018

SANDY DAVIS, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood, Senior U.S. District Judge

         Plaintiff 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.

         I. Standard for Determining Disability

         Under 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).

         II. Procedural and Factual History

         Davis initially filed an application for Disability Insurance Benefits (DIB)[1] on May 19, 2014, alleging disability as of May 28, 2010.[2] [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].

         Subsequently, 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 arthritis. [Id.].

         Additionally, 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].

         Davis 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.].

         Davis 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 syndrome. [Id.].

         Furthermore, 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].

         Additionally, 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. [TR 560-61].

         Next, 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].

         Davis 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].

         On 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.].

         At step 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.].

         At step 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].

         First, 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.].

         Second, 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. [Id.].

         The ALJ 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].

         At step 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].

         The 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.

         III. Standard of Review

         When 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).

         Even 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))).

         IV. Analysis

         Davis 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.

         A. Consideration of Relevant Medical Evidence in Determining Whether Davis Met Listing 1.04A

         First, 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.

         “The 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 ...


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