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Tinker v. Berryhill

United States District Court, N.D. Alabama, Middle Division

September 6, 2019

DONNIE RAY TINKER Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          COREYE MAZE UNITED STATES DISTRICT JUDGE.

         Donnie Ray Tinker seeks Disability Insurance Benefits (DIB) from the Social Security Administration (SSA). Tinker's qualifying disability shifted somewhat during the proceedings below. Tinker argued to an Administrative Law Judge (ALJ) that he could not work due to severe back pain. Tinker then argued to the SSA Appeals Council that depression and low intellectual capacity precluded his employment. Neither argument was successful.

         Tinker now asks this Court to find that (a) the Appeals Council wrongly refused to consider Tinker's new evidence of depression and low intellectual capacity and, when that error is rectified, (b) the combination of his back pain, neck pain, depression, and low intellectual capacity entitles him to DIB. But, as detailed below, the Appeals Council did not err when it refused to consider Tinker's new evidence, and thus this Court cannot combine Tinker's ailments to grant him DIB.

         I. Statement of the Case

         A. Determining Disability

          The SSA has created the following five-step process to determine whether an individual is disabled and thus entitled to benefits under the Social Security Act:

The 5-Step Test

Step 1

Is the Claimant engaged in substantial gainful activity?

If yes, claim denied.

If no, proceed to Step 2.

Step 2

Does the Claimant suffer from a severe, medically-determinable impairment or combination of impairments?

If no, claim denied.

If yes, proceed to Step 3.

Step 3

Does the Step 2 impairment meet the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appx. 1?

If yes, claim granted.

If no, proceed to Step 4.

Step 4

Does the Claimant possess the residual functional capacity to perform the requirements of his past relevant work?

If yes, claim denied.

If no, proceed to Step 5.

Step 5

Is the Claimant able to do any other work considering his residual functional capacity, age, education, and work experience?

If yes, claim denied.

If no, claim granted.

See 20 C.F.R. §§ 404.1520(a), 404.1520(b) (2019) (Step 1); 20 C.F.R. § 404.1520(c) (2019) (Step 2); 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 (2019) (Step 3); 20 C.F.R. § 404.1520(e-f) (2019) (Step 4); 20 C.F.R. § 404.1520(g) (2019) (Step 5).

         Step 2 is the most relevant step in this case because, as detailed below, the SSA denied Tinker's application because Tinker failed to establish that he suffered from a severe medically-determinable impairment or combination of impairments.

         B. Tinker's Disability (as told to the ALJ)

         As noted in the introduction, Tinker initially claimed that his disability was an injured back/neck. The following facts come from Tinker's testimony before the ALJ; the court will address his new evidence to the Appeals Council in subpart D.

         Tinker worked for 12 hours per day while suffering from back and neck pain. Sometime before April 2011, Tinker stopped working his 12-hour-per-day job and began working 16 hours per week doing building maintenance.[1] Tinker's mother agreed to financially support Tinker after he switched jobs.

         On August 18, 2010, Tinker sought treatment from a chiropractor. The chiropractor took x-rays of Tinker's spine, which showed spurring and a “possible” fracture. The chiropractor told Tinker that he would not adjust Tinker's neck unless Tinker saw a medical doctor. The next day, Tinker reported that his neck felt better and was just a little sore. One week later, he reported that his back was okay. He returned to the chiropractor, however, in October and November 2010 and complained of increased pain. The chiropractor again advised Tinker to see a medical doctor, but he did not.

         In April 2011, a tornado struck Tinker's home and his mother's adjacent home. Tinker survived; his mother and brother did not. Tinker's back pain intensified after the tornado. Tinker began taking 16 Advil pills per day. Still, Tinker did not visit a medical doctor, only his chiropractor.

         Tinker's last day insured was June 30, 2012.

         C. Tinker's Application and the ALJ's Decision

         The SSA reviews applications for disability benefits in three stages: (1) Initial determination, including reconsideration, (2) review by an ALJ, and (3) review by the SSA Appeals Council. See 20 C.F.R. § 404.900(a)(1-4) (2019). Tinker applied for DIB on February 24, 2015, and the SSA initially denied his claim on March 27, 2015.

         Tinker then requested a hearing with an ALJ, which he received on September 1, 2016. In advance of the hearing, Tinker informed the ALJ that he suffered from “the following severe impairments: back and neck problems, hypertension, headaches with difficulty walking due to back, dizziness and SOB[.]” R. at 240. At the hearing before the ALJ, Tinker testified to the facts outlined above, and he presented evidence of the chiropractor's August 2010 x-ray.

         At the end of the hearing, the ALJ told Tinker that, unless Tinker could provide an x-ray reading from a medical doctor that established a severe injury, “then it's going to be a non-severe denial, step 2.” R. at 113. The ALJ noted that the reading must come from a “medical doctor . . . not a chiropractor.” Id. The ALJ granted Tinker 30 days to have a doctor review his x-rays, so that he might avoid the Step 2 denial.

         Tinker did not provide any additional evidence to the ALJ. On March 15, 2017, the ALJ issued an opinion denying Tinker's application. R. at 8-19. At Step 1, the ALJ determined that Tinker was not engaged in substantial gainful activity, and thus his claim would progress to Step 2. R. at 13.

         At Step 2, the ALJ determined that, although Tinker suffered from “degenerative disc disease of the cervical spine and lumbar spine, ” Tinker failed to establish that he suffered from a severe medically-determined impairment or combination of impairments. Id. To support this finding of non-severity, the ALJ noted that “the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record[.]” R. at 15. The ALJ noted that Tinker had not sought medical assistance, despite his chiropractor's statements, and that Tinker said that his back and neck were “okay” shortly after his initial visit. Id. The ALJ also noted that when Tinker finally had a medical doctor take and review x-rays in 2015/2016-well after Tinker's last date insured in June 2012 (i.e. the end of the relevant time period)-“there were no significant findings on those x-rays.” Id. Furthermore, the ALJ noted that Tinker failed to have a doctor review the chronologically relevant x-rays taken by Tinker's chiropractor in August 2010, despite the ALJ's advice to do so. Id.

         As she had at the hearing, the ALJ also noted that the Social Security Regulations require “acceptable medical sources” to be the basis of a medically-determinable impairment and chiropractors are not considered an acceptable medical source. Id. (citing 20 C.F.R. § 404.1513(a) and Social Security Rule 06-03p).

         D. The Appeals Council's Decision

         The SSA Appeals Council will review an ALJ's decision only for one of the following five reasons:

1. The ALJ abused his discretion;
2. The ALJ made an error of law;
3. The ALJ's findings/conclusions are not supported by substantial evidence;
4. The case presents a broad policy or procedural issue that may affect the public's interest; and/or
5. The Applicant submits to the Appeals Council additional evidence “that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.”

20 C.F.R. § 404.970(a) (2019). If an Applicant fails to establish one of these five reasons for review, the ALJ's decision becomes the final decision of the SSA Commissioner.

         Tinker appealed the ALJ's decision pursuant to the ‘new evidence' provision and offered the following new pieces of evidence to support his appeal:

1. Tinker's middle school and high school records from 1965 to 1973;
2. A statement from nurse practitioner Sarah Gilbreath, dated ...

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