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Mullins v. Berryhill

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

September 18, 2019

THOMAS MARTIN MULLINS, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

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

         Plaintiff Thomas Martin Mullins brings this action under 42 U.S.C. § 405(g) to challenge Defendant Commissioner’s final decision denying Plaintiff’s application for Social Security Disability Insurance Benefits and Supplemental Security Income. [DE 1]. The specific matters currently before the Court include Plaintiff’s Motion for Summary Judgment [DE 17] and Defendant’s Motion for Summary Judgment [DE 19]. Both matters are now ripe for decision, and for the reasons discussed below, Plaintiff’s Motion for Summary Judgment [DE 17] will be denied, and Defendant’s Motion for Summary Judgment [DE 19] will be granted. Accordingly, the Court will affirm the Commissioner’s decision, as it is supported by substantial evidence.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On July 20, 2013, Plaintiff filed both a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income, alleging his disability began on February 14, 2012. [Tr. 143-46]. At the time of Plaintiff’s alleged disability onset date, he was 47 years old. [Tr. 357-64]. Plaintiff is a high school graduate, and his past relevant work was as a coal mine shuttle car operator and a coal mine scoop operator. [Tr. 357-64]. In Plaintiff’s application materials, he initially alleged he was unable to work due to both physical and mental impairments, including anxiety, depression, high blood pressure, arthritis, and pain in the lower back, neck, left knee, arms, and shoulders, which arose from injuries to his neck and back that occurred while he was working in the mines. [Tr. 395]; see also [Tr. 429, 475, 694].

         Plaintiff received treatment from pain management specialists James Chaney, M.D., Peter Wright, M.D., Ballard Wright, M.D., and the Wrights’ nurse practitioner, Rebecca Moore. [Tr. 475-77, 478-500, 583-89, 641-57, 669-8]. On January 28, 2013, Plaintiff began seeing John W. Gilbert, M.D., for his back pain. [Tr. 508-13]. Initially, Dr. Gilbert recommended physical therapy and facet blocks. [Tr. 508]. However, Dr. Gilbert’s initial treatments proved insufficient, so on October 10, 2013, he performed a cervical decompression fusion surgery on Plaintiff. [Tr. 543-46]. Plaintiff’s treatment with Dr. Gilbert, Dr. Peter Wright, and Dr. Ballard Wright will be discussed further herein.[1]

         Plaintiff’s claims were denied initially and on reconsideration. [Tr. 143, 144, 197, 198]. After a March 31, 2015 hearing [Tr. 117-42], on April 13, 2015, an Administrative Law Judge (“ALJ”) reviewed the evidence of record and granted Plaintiff’s applications. [Tr. 199-209]. However, on February 2, 2016, the Appeals Council vacated the ALJ’s April 13, 2015, Decision [Tr. 199-209] and remanded this case for further proceedings because the Appeals Council found the ALJ’s April 13, 2015, Decision [Tr. 199-209] was not supported by substantial evidence. [Tr. 210-16]. Pursuant to the Appeals Council’s remand, on April 6, 2016, a second hearing [Tr. 79-116] was held, and on June 28, 2016, an ALJ reviewed the evidence of record and denied Plaintiff’s applications. [Tr. 24-45]. In denying Plaintiff’s applications, the ALJ found the Plaintiff had severe breathing and neck and lower back pain and should avoid concentrated exposure to vibration and fumes, odors, dusts, gases, and poor ventilation. [Tr. 29, 31]. The ALJ determined Plaintiff could perform light work, including the following restrictions: frequent climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; occasional stooping, kneeling, crouching, and crawling; and frequent overhead reaching. [Tr. 31]. The ALJ’s light work finding was consistent with state agency physician Donna Sandler, M.D.’s January 7, 2014, assessment that Plaintiff was not disabled and was capable of performing light work with certain postural, reaching, and environmental limitations. [Tr. 191-96]. The ALJ accorded great weight to the state agency. [Tr. 37]. In conclusion, the ALJ decided that while Plaintiff was unable to perform his past relevant work as a coal mine bolting machine operator and a coal mine scoop operator, he was “capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” [Tr. 24-45]. On October 31, 2017, the ALJ’s June 28, 2016, Decision [Tr. 24-45] became the final determination of the Commissioner when the Appeals Council denied Plaintiff’s request for review. [Tr. 1-6].

         Having exhausted his administrative remedies, on January 4, 2018, Plaintiff sought review through an action in this Court, arguing in Paragraph V of his Complaint [DE 1] that Defendant’s determination that Plaintiff was not disabled was not supported by substantial evidence. [DE 1, at 2]. On April 19, 2018, Defendant filed an answer contending, “Paragraph V of Plaintiff’s Complaint states a legal conclusion to which no responsive pleading is required. To the extent that the court deems a responsive pleading is necessary, defendant denies paragraph V.” [DE 9, at 1]. Pursuant to the Court’s April 19, 2018, Standing Scheduling Order [DE 10], Plaintiff was directed to “move for summary judgment or judgment on the pleadings within sixty (60) days.” [DE 10, at 2].

         On June 20, 2018, instead of moving for summary judgment or judgment on the pleadings, Plaintiff filed a Motion for Extension of Time in Order to Submit Memorandum [DE 11] asserting, “[C]ounsel has had to relocate this law practice which interrupted his ability to properly prepare Mr. Mullins’ [sic] memorandum and have delayed our ability to complete our arguments on Mr. Mullins’ [sic] behalf.” [DE 11, at 1]. On August 13, 2018, Plaintiff filed a Motion to Amend Complaint and Motion to Remand [DE 12], requesting the Court allow Plaintiff “to amend its complaint to reflect that the denial issued claim issued in 2017 was issued by an ALJ who was not properly appointed.” [DE 12, at 1]. On March 25, 2019, the Court granted Plaintiff’s Motion for Extension of Time in Order to Submit Memorandum [DE 11] and denied Plaintiff’s Motion to Amend Complaint and Motion to Remand [DE 12] because he failed to state his argument in a non-perfunctory manner and, accordingly, waived his argument. [DE 16]. Specifically, the Court found Plaintiff waived his argument because instead of making a proper argument, Plaintiff directed this Court to merely look at a United States Supreme Court opinion, Lucia v. S.E.C., 138 S.Ct. 2044 (2018). Id.

         As will be discussed further herein, on April 10, 2019, Plaintiff filed the present Motion for Summary Judgment [DE 17], with an accompanying Memorandum in Support [DE 17-2]. Responding to Plaintiff’s Motion for Summary Judgment [DE 17], on May 6, 2019, Defendant filed a Motion for Summary Judgment [DE 19] arguing, in summary, that Plaintiff has waived all Lucia related challenges, and in assessing Plaintiff’s RFC, the ALJ reasonably weighed the medical opinion evidence. [DE 19, at 7-12].

         II. STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), a reviewing court “must affirm the Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in the record.” Longworth v. Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (citations omitted). The scope of judicial review is limited to the record itself, and the reviewing court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Hogg v. Sullivan, 987 F.2d 328, 331 (6th Cir. 1993) (citations omitted).

         The Sixth Circuit has held that “substantial evidence exists when a reasonable mind might accept the relevant evidence as adequate to support a conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (citations omitted). The limited nature of substantial evidence review prevents the reviewing court from substituting its judgment for that of the ALJ. Rather, so long as substantial evidence exists, the reviewing court should affirm the ALJ’s Decision [Tr. 24-45] “even if there is substantial evidence in the record that would have supported an opposite conclusion.” Longworth, 402 F.3d at 595 (citations omitted). Substantial evidence is “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.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted).

         “In determining whether the Secretary's factual findings are supported by substantial evidence, [the Court] must examine the evidence in the record ‘taken as a whole . . . .’” Wyatt v. Secretary of Health and Human Services, 974 F.2d 680, 683 (6th Cir. 1992) (citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980)). Additionally, the Court “‘must take into account whatever in the record fairly detracts from its weight.’” Wyatt, 974 F.3d at 683 (citing Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978). “The substantial evidence standard presupposes that there is a ‘zone of choice’ within which the [Commissioner] may proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted). “If the Secretary’s findings are supported by substantial evidence, then we must affirm the Secretary’s decision even though as triers of fact we might have arrived at a different result.” Elkins v. Secretary of Health & Human Services, 658 F.2d 437, 439 (6th Cir. 1981).

         III. DISCUSSION

         Under the Social Security Act, the term “disability” means an “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). A five-step sequential evaluation process is used to determine whether a claimant is ...


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