Terrell v. SSA
OPINION AND ORDER: The Court GRANTS the Commissioner's Motion for Summary Judgment 16 and DENIES Terrell's Motion for Summary Judgment 15 . The Court will enter a separate judgment. Signed by Magistrate Judge Robert E. Wier on 6/14/2017.(KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
OPINION AND ORDER
*** *** *** ***
Ronald Terrell appeals the Commissioner’s denial of his application for disability
benefits.2 The parties filed cross-motions for summary judgment. The Court GRANTS the
Commissioner’s motion (DE #16) and DENIES Terrell’s motion (DE #15) because substantial
evidence supports the findings resulting in the administrative decision, and the decision rests on
proper legal standards.
The Court substitutes Nancy A. Berryhill as the current Acting Commissioner of Social
Security per Fed. R. Civ. P. 25(d).
Terrell applied for both Title II disability insurance benefits and Title XVI supplemental
security income, which the Court collectively refers to as “benefits.” See R. at 162-68. The
“standard of review for supplemental security income cases mirrors the standard applied in social
security disability cases.” Bailey v. Sec’y of Health & Human Servs., 922 F.2d 841, No. 90-3265,
1991 WL 310, at *3 (6th Cir. 1991) (table). “The standard for disability under both the DIB and
SSI programs is virtually identical.” Roby v. Comm’r of Soc. Sec., No. 12-10615, 2013 WL
451329, at *3 (E.D. Mich. Jan. 14, 2013), adopted in 2013 WL 450934 (E.D. Mich. Feb. 6,
2013); see also Elliott v. Astrue, No. 6:09-CV-069-KKC, 2010 WL 456783, at *4 (E.D. Ky. Feb.
3, 2010) (“[T]he same legal standards and sequential evaluation process is employed for making
the disability determination regardless of whether an application is for DIB or SSI.”); Spencer v.
Colvin, No. 5:14-CV-352-REW, 2015 WL 4621882, at *1 n.1 (E.D. Ky. July 30, 2015).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Terrell is currently 64 years old. See R. at 60 (indicating date of birth of 6/13/1953). He
alleges disability beginning on July 10, 2013. See R. at 23. Terrell applied for benefits in mid- to
late-2013. Id. His claims were initially denied on December 17, 2013, see R. at 99-102, and upon
reconsideration on February 14, 2014. See R. at 104-06. Terrell then filed a written request for a
hearing on February 18, 2014. R. at 118. Administrative Law Judge (ALJ) Don C. Paris held a
video hearing on the application on April 29, 2015. R. at 129. At the hearing, Terrell appeared
and testified; Timothy Elrod or Andrew Youngman3 represented him. R. at 37. Stephanie Barnes,
an impartial vocational expert (VE), also testified. Id. The ALJ subsequently denied Terrell’s
claims on May 18, 2015. R. at 23-30. The Appeals Council denied review and thus upheld the
ALJ’s decision on April 16, 2016. R. at 1-3.
The ALJ made several particular findings in the required rubric. He determined that
Terrell did not engage in substantial gainful activity from July 10, 2013, the alleged onset date,
through May 18, 2015, the date of decision. See R. at 24, 25. The ALJ next determined that
Terrell has two severe impairments: degenerative disc disease of the cervical spine and chronic
low back pain. R. at 26. However, ALJ Paris then found that Terrell did “not have an impairment
or combination of impairments that [met] or medically equal[ed] the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]” Id. The ALJ further found that
Terrell “ha[d] the residual functional capacity [(RFC)] to perform a range of medium work” with
a variety of listed limitations. R. at 27. ALJ Paris, relying on VE verified input, considered
Terrell’s age, education, work experience, and RFC to determine that “[t]here are jobs that exist
in significant numbers in the national economy that [Terrell] can perform[.]” R. at 29. Based on
The transcript indicates Timothy Elrod represented Terrell at the hearing. R. at 37. The ALJ,
however, stated that non-attorney Andrew Youngman represented Claimant. R. at 23.
all these considerations, the ALJ ruled that Terrell was “not under a disability . . . from July 10,
2013” through May 18, 2015. Id. Unsatisfied with the result of the SSA’s administrative process,
Terrell turned to federal district court for review.
Standard of Review
The Court has carefully read the ALJ’s full decision and all medical reports and evidence
it cites. The Court also read and considered the full administrative hearing and record. Judicial
review of the ALJ’s decision to deny disability benefits is a limited and deferential inquiry into
whether substantial evidence supports the denial’s factual decisions and whether the ALJ
properly applied relevant legal standards. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th
Cir. 2009); Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008); Brainard v. Sec’y
of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing Richardson v. Perales, 91
S. Ct. 1420, 1427 (1971)); see also 42 U.S.C. § 405(g) (providing and defining judicial review
for Social Security claims) (“The findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive[.]”).
Substantial evidence means “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.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994); see also Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). The Court, on
review, does not try the case de novo, resolve conflicts in the evidence, or assess questions of
credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). Similarly, the Court does not
reverse findings of the Commissioner or the ALJ merely because the record contains evidence,
even substantial evidence, to support a different conclusion. Warner, 375 F.3d at 390. Rather, the
Court must affirm the ALJ’s decision if substantial evidence supports it, even if the Court might
itself have decided the case differently. See Longworth v. Comm’r of Soc. Sec., 402 F.3d 591,
595 (6th Cir. 2005); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
The ALJ, when determining disability, conducts a five-step analysis. See Preslar v. Sec’y
of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994); 20 C.F.R. § 404.1520(a)(4). At
Step 1, the ALJ considers whether the claimant is performing substantial gainful activity. See
Preslar, 14 F.3d at 1110. At Step 2, the ALJ determines whether any of the claimant’s
impairments are severe. Id. At Step 3, the ALJ analyzes whether the claimant’s impairments,
alone or in combination, meet or equal an entry in the Listing of Impairments. Id. At Step 4, the
ALJ determines RFC and then whether the claimant can perform past relevant work. Id. The
inquiry at this stage is whether the claimant can still perform that type of work, not necessarily
the specific past job. See Studaway v. Sec’y of Health & Human Servs., 815 F.2d 1074, 1076 (6th
Cir. 1987). Finally, at Step 5, when the burden of proof shifts to the Commissioner, if the
claimant cannot perform past relevant work, the ALJ determines whether significant numbers of
other jobs exist in the national economy that the claimant can perform, given the applicable RFC.
See Preslar, 14 F.3d at 1110; 20 C.F.R. § 404.1520(a)(4). If the ALJ determines at any step that
the claimant is not disabled, the analysis ends at that step. Mowery v. Heckler, 771 F.2d 966, 969
(6th Cir. 1985); 20 C.F.R. § 404.1520(a)(4).
When reviewing the ALJ’s application of the legal standards, the Court gives deference
to his interpretation of the law and reviews the decision for reasonableness and consistency with
governing statutes. Whiteside v. Sec’y of Health & Human Servs., 834 F.2d 1289, 1292 (6th Cir.
1987). In a Social Security benefits case, the SSA’s construction of the statute should be
followed “unless there are compelling indications that it is wrong.” Merz v. Sec’y of Health &
Human Servs., 969 F.2d 201, 203 (6th Cir. 1992) (quoting Whiteside, 834 F.2d at 1292).
The ALJ did not commit reversible error in his RFC assessment.
First,4 Terrell generally argues that ALJ Paris erred in his assessment of Terrell’s RFC.
Terrell asserts that the “overwhelming weight of the . . . evidence” supports a disability finding.
DE #15-1, at 5. In particular, he quarrels with the ALJ’s decision to assign little weight to Dr.
David L. Winkle’s opinion and great weight to the state agency consultants’. Id. at 7-8.
The Court excerpts ALJ Paris’s RFC finding explanation:
At the hearing, the claimant testified that he has numbness in his shoulder down
into his arm and fingers, with severe pain in his cervical spine. On examination in
June of 2013, Vickie Marple, NP noted decreased range of motion in the neck and
back, but no neurological findings such as weakness or loss of sensation (Exhibit
2F, p. 3). However, MRI of the cervical spine in September of 2014 identified
moderate to severe degenerative changes with moderate to severe spinal stenosis
and severe neural foraminal narrowing at multiple levels (Exhibit 6F, pp. 7-8).
David Winkle, M.D. examined the claimant in November of 2013. Dr. Winkle
observed that the claimant had no apparent gait disturbance and moved about
without any assistive device. He was able to get up and down from the chair and
examination table without difficulty or assistance, and was able to tandem walk
and walk on toes and heels. He was able to knee squat, and showed no sensory
losses. Reflexes were 2+ and symmetric, grip strength and fine manipulation were
normal, and straight leg raising was negative. He had tenderness in the lumbar
area, but normal range of motion throughout. X-ray of the lumbar spine was
unremarkable except for minimal hypertrophic lipping of the L5 vertebra. Dr.
Winkle diagnosed cervical and lumbar pain secondary to degenerative disease,
with radiculopathy to the left upper extremity (Exhibit 4F).
Dr. Winkle stated that the claimant would be limited to standing about 30 minutes
at a time; could stand and walk four hours in an eight hour day; and could lift and
handle 40 pounds occasionally and 25 pounds frequently (Exhibit 4F). The
undersigned gives little weight to Dr. Winkle’s opinion, however, as his own
examination provided no support for such limitations and they appear to be
based on the claimant’s subjective report rather than any objective evidence
Terrell’s brief contains an amalgamation of arguments at DE #15-1, at 5-9. The Court organizes
and assesses the claims as best it can.
R. at 27-28 (emphasis added). Additionally, ALJ Paris found that Terrell’s own “statements
concerning the intensity, persistence and limiting effects of the symptoms are not entirely
credible[.]” R. at 28. The ALJ gave state-agency doctors Nicole Mannis’s and Robert Brown’s
opinions “great weight” because they are “consistent with the medical evidence of record.” Id.
ALJ Paris certified multiple times that he gave “careful consideration [to] all the evidence” and
“the entire record[.]” R. at 24-25, 27. Brown, in particular, formulated exertional limitations
lower than Winkle, and he viewed Winkle as overstating the degree of impairment. R. at 92
(“The CE examiner’s opinion is an overestimate of the severity of the individual’s restrictions /
limitations and based only on a snapshot of the individual’s functioning.”).
As a starting point, as the Commissioner argues, no single medical source is alone
necessary or conclusive on the RFC issue. See Blakley, 581 F.3d at 409; Gayheart v. Comm’r of
Soc. Sec., 710 F.3d 365, 379 (6th Cir. 2013) (“To be sure, a properly balanced analysis might
allow the Commissioner to ultimately defer more to the opinions of consultative doctors than to
those of treating physicians.”); Fisk v. Astrue, 253 F. App’x 580, 585 (6th Cir. 2007) (“To be
sure, the ALJ’s decision to give greater weight to [a consultant’s] opinion was not, in and of
itself, error.”). Therefore, Terrell’s argument concerning a lack of ALJ citation to evidence “from
any examining or treating medical provider,” including from Dr. Housam Haddad, leads, as an
independent matter, to no relief. Also, the Court may, of course, consider pieces of record
evidence “even if the ALJ failed to cite” them. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535
(6th Cir. 2001).
As to Terrell’s other RFC-centered arguments, ALJ Paris reached three significant
underlying results in determining the RFC; substantial record evidence supports each.
First—The ALJ reasonably discounted Winkle’s opinion.
Dr. Winkle’s at-issue November 2013 assessment is located at R. at 289-95. In the report,
Winkle noted that Terrell had “no pain with straight leg raising.” R. at 290. Dr. Winkle observed
that Terrell’s “range of motion,” including that “of the lumbar area and cervical area[, was]
within normal limits.” R. at 291. An x-ray revealed to Winkle “a normal alignment of the bony
structures within the lumbar area. The disc spaces appear[ed] well preserved.” Id. Terrell’s
lumbar area was “unremarkable” to Dr. Winkle. Id. According to the doctor, Terrell moved
“about the examination room . . . without using any assistive devices and with no apparent gait
disturbance.” Id. He got up and down from the exam table “without difficulty or assistance.” Id.
The examination showed “normal strength and dexterity in the upper and lower extremities” and
no apparent “issues with his mobility.” Id. at 291. The back examination revealed only
“tenderness in the lumbar area.” Id. at 290. Winkle concluded, from this rather unexceptional
assessment, that Terrell could only “stand for about 30 minutes at a time” and for “at least four
hours in an 8-hour day.” Id. at 291. Dr. Winkle found that Terrell could “lift and handle 40
pounds occasionally and 25 pounds more frequently.” Id. The ALJ ultimately gave Winkle’s
conclusions little weight because Winkle’s “own examination provided no support for such
limitations and they appear to be based on the claimant’s subjective report rather than any
objective evidence or observations.” R. at 28.5
ALJ Paris’s assessment here is undoubtedly reasonable. Dr. Winkle’s conclusions draw
no apparent support from the actual examination findings. Winkle textually based his opinion
entirely on Terrell’s “back pain” or, differently phrased, “back problems.” R. at 291 (drawing
conclusions solely “[b]ecause of” these issues). However, as just recounted, and as the ALJ
concluded, Winkle himself documented no such disabling back pain or problems in his own
The range of motion chart attached to the report appeared fully normal in all respects, including
as to the cervical and lumbar areas. R. at 293-94.
report. To the contrary, and but for one area of tenderness, Winkle consistently reported that
Terrell had “no pain,” a “normal” range of motion, “a normal alignment of the bony structures
within the lumbar area,” “well preserved” disc spaces, an “unremarkable” lumbar area, and no
difficulty moving around the examination area or on or off the exam table. R. at 290-91. Terrell
had no strength or ambulation deficits.
Rather, the basis for Winkle’s reliance on Terrell’s back pain / problems was Terrell’s
self-reported history. See R. at 289 (noting the “history of back pain” and recounting history
based on what “he [Terrell] said” and Claimant’s “state[ments]”). Terrell himself “state[d] his
lower back bothers him 3-4 times per week” and that “prolonged standing over about 30 minutes
tends to aggravate his lower back.” R. at 290. An ALJ may discount a medical opinion when it is
“based not upon [the provider’s] own medical conclusion,” but instead on the claimant’s “own
assessment of his . . . limitations.” Warner, 375 F.3d at 391; see also Griffith v. Comm’r of Soc.
Sec., 582 F. App’x 555, 564 (6th Cir. 2014). The ALJ defensibly seized on that criticism here.
ALJ Paris, in his opinion, as relevant here, also found that Terrell’s “statements
concerning the intensity, persistence and limiting effects of the symptoms are not entirely
credible[.]” R. at 28. This assessment too finds substantial record support.6 Terrell, at the April
The ALJ’s claimant credibility analysis is the second issue the Court perceives Terrell to raise.
The Court considers this topic here due to its interconnectedness with the evaluation of Winkle’s
opinion. Terrell cites no law on the general issue of an ALJ assessment of a claimant’s
credibility. “It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of
witnesses, including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th
Cir. 2007). “However, the ALJ is not free to make credibility determinations based solely upon
an intangible or intuitive notion about an individual’s credibility. Rather, such determinations
must find support in the record.” Id. (internal quotation marks and citation omitted). The “ALJ’s
findings based on the credibility of the applicant are to be accorded great weight and deference,
particularly since an ALJ is charged with the duty of observing a witness’s demeanor and
credibility. Nevertheless, an ALJ’s assessment of a claimant’s credibility must be supported by
substantial evidence.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)
(internal citation removed); see also Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000)
(affording a credibility determination “special deference because the ALJ is in the best position
2015 ALJ hearing, described his back pain as “severe” and “sharp.” See, e.g., R. at 46; see also,
e.g., R. at 210. He certainly noted some degree of limitation in daily activities, but he
consistently asserted a large degree of continuing ability. For example, the ALJ asked about
Claimant’s ability to walk. Terrell responded that he walks “[a]s much as [he] possibly can,”
approximately 400-500 feet, basically the length of 1.5 football fields. R. at 47-48. He tries “to
do that every day.” R. at 48. He suggested he takes such walks “3-4 times” each day. Id. at 47.
Terrell said he can stand for 20 minutes at a time and can bend “[a] little bit if [he] really has to.”
Id. at 48. He had no problems, except some occasional tingling, with his hands or fingers. Id. He
takes care of his own bathing and shaving. R. at 50. He “usually” makes his own frozen dinners,
and he shops at Kroger every few weeks. Id. Claimant regularly interacts with visitors and
family. R. at 51-52. He watches TV, listens to music, and tries “to get outside as much as [he]
possible can,” even if he just goes outside and sits. R. at 52. Terrell said he loves watching UK
basketball and expressed a desire to begin attending church. R. at 52-53.7
Terrell’s November 2013 questionnaire indicates nothing disabling, and certainly nothing
to the extent of the testimony; he certified that his conditions cause no problems with his
personal care, R. at 196, that he does not need reminders to take medicine, R. at 197, and that he
prepares meals for himself daily. Id. He indicated he does his own laundry and cleaning and that
he sometimes mows. Id. Terrell said he goes outside 5-10 times per day, both via walking and
driving. R. at 198. He shops in stores, pays his own bills, counts change, handles a savings
account, and uses a checkbook. Id.; accord R. at 213. Indeed, the questionnaire reveals that
Terrell apparently continued working in a period he claims to have been disabled: he said,
to see and hear the witness and determine credibility”). The ALJ saw Terrell first-hand and
accounted for the full record in assessing his testimony.
“An ALJ may also consider household and social activities engaged in by the claimant in
evaluating a claimant’s assertions of pain or ailments.” Walters, 127 F.3d at 532.
without explanation, that he “tak[es] payments & rent[s] [storage] units that are available to new
customers.” R. at 195. Interestingly, in December 2014, Terrell responded to a Pain and ADL
questionnaire by putting his standing / walking limit at 1.5 hours: “Don’t walk and stand much
over about 1 ½ hours.” R. at 213. This is dramatically different from the 20 minute limit Terrell
claimed at the hearing and the 30 minute limit claimed before Dr. Winkle. ALJ Paris had
substantial reasons to doubt Terrell’s self-assessment.
The historical records confirm a disconnect between Terrell’s subjective complaints and
his objective ability reports and the objective medical evidence. For example, NP Vickie Marple
indicated in June 2013 that Terrell went to a chiropractor, who advised “that his neck was doing
much better.” R. at 246.8 Terrell was in “no apparent distress” before Marple. R. at 247. He,
inconsistently in the record, had normal neck range of motion, R. at 248, and decreased neck
range of motion. Id. The 2012-13 chiropractor notes consistently indicate merely “dull” pain. R.
at 257-88. Indeed, the chiropractor noted Terrell’s “improvement” on September 17, 2012. R. at
263. Terrell continued to improve in November 2012; he was “doing better” and had “changed a
lot of lightbulbs” on November 16, 2012. R. at 266. He had “hung up Christmas lights” in
December 2012. R. at 267. Terrell continued to feel better in March 2013, R. at 275, through
August 2013, R. at 285.
As Claimant emphasizes, a September 2014 MRI of Terrell’s cervical spine indeed
indicated “[m]oderate to severe degenerative changes[.]” R. at 321-22.9 A June 5, 2015 (post8
Terrell also cites to R. at 319, which indeed indicates a notation of “neck & l. shoulder pain” in
February 2014. No party disputes that Terrell endures some pain, but, as the Court documents in
this Opinion, substantial medical evidence counters the claim (especially when applying the
applicable deferential standard of review) of the disabling intensity of this pain. In the Court’s
assessment, substantial evidence supports the ALJ’s determination, even if some evidence
likewise supports an opposite conclusion.
Dr. Haddad also made, for example, various notations of “spinal stenosis (severe)” in 2014-15.
R. at 330, 331, 342. The bulk of Dr. Haddad’s handwriting is otherwise illegible, to the Court.
MRI), report indicates, though, that Terrell had only “minimal leftward curvature of the lumbar
spine,” with “no acute lumbar spine fracture or subluxation” and merely “[m]ild lower lumbar
spine facet arthropathy.” R. at 343. Dr. Shane Desimone diagnosed only “[m]ild lumbar spine
degenerative changes” approximately 9 months after this MRI. Id. An examination in May 2015,
for instance, revealed the chiropractor’s objective findings to be significantly less extreme than
Terrell’s subjective complaints. R. at 345. Post-hearing, even per Terrell’s own reports, his
symptoms improved in June 2015. R. at 346. He may have had a setback in early August 2015,
but he then reported that his conditions were “[i]mproving” on August 26, 2015. R. at 350.
In light of the evidence, the ALJ reasonably discounted the veracity of Terrell’s
subjective complaints of pain, which find exceedingly little objective support in the record. See,
e.g., Walters, 127 F.3d at 531-32 (“Discounting credibility to a certain degree is appropriate
where an ALJ finds contradictions among the medical reports, claimant’s testimony, and other
evidence.”). The Court certainly finds substantial evidence in this record to support the ALJ’s
assessment (even if there also exists evidence to counter it). Substantial record evidence supports
the ALJ’s finding that Terrell’s subjective statements are not entirely credible. Accordingly, ALJ
Paris reasonably discounted Winkle’s opinion, which was based wholly on Terrell’s statements;
the ALJ’s independent conclusion on Terrell’s credibility, under the applicable standard, was
Third—The ALJ did not err in giving great weight to Mannis’s and Brown’s opinions.
Nicole Mannis, Psy.D., and Robert K. Brown, M.D., are state-agency consultants who
evaluated Terrell’s disability status. See R. at 84-94. The ALJ gave their evaluations “great
weight” because “they are consistent with the medical evidence of record.” R. at 28. As a general
matter and a foundational starting point, an opinion from a non-examining consultant may alone
be the basis for the ALJ’s opinion, even when it conflicts with one from a treating source. See
Blakley, 581 F.3d at 409; Gayheart, 710 F.3d at 379 (“To be sure, a properly balanced analysis
might allow the Commissioner to ultimately defer more to the opinions of consultative doctors
than to those of treating physicians.”); Helm, 405 F. App’x at 1002 (“There is no categorical
requirement that the non-treating source’s opinion be based on a ‘complete’ or ‘more detailed
and comprehensive’ case record. The opinions need only be ‘supported by evidence in the case
record.’”); Fisk v. Astrue, 253 F. App’x 580, 585 (6th Cir. 2007) (“To be sure, the ALJ’s
decision to give greater weight to [a consultant’s] opinion was not, in and of itself, error.”).
Dr. Mannis evaluated Terrell’s psychiatric complaints. See R. at 89. She noted that
Terrell had “[n]o history of psychiatric hospitalization or engagement in outpatient counseling.”
Id. Mannis found significant Terrell’s “appropriate affect and demeanor” and lack of difficulty
“following instructions, managing money, or completing personal care, cleaning, and household
chores,” as well as shopping and operating a vehicle. Id. Mannis found that Terrell’s “report of
difficulty with concentration . . . is not supported by” the record. Id. Mannis’s assessment, in
light of the Court’s review of the record, summarized above, undoubtedly squares with the
evidence. She accurately summarized Terrell’s own reports, and made a finding of inconsistency
between Terrell’s subjective complaints and the objective medical evidence that substantial
record evidence supports. The ALJ properly afforded Mannis’s report great weight. Terrell
makes no significant contrary argument.
Dr. Brown evaluated Terrell’s physical complaints. See R. at 90-92. He found Terrell’s
subjective reports to be “partially credible” because, while the “medical and non medical
evidence does not support the degree of the opined BWA [basic work activity] limitation,” “the
overall evidence does support some limitation of the identified basic work activity.” R. at 90. Dr.
Brown assigned Terrell certain exertional limitations, citing objective medical evidence to
support each rating. Id. (referencing Terrell’s normal extremity exam, acknowledging Terrell’s
back tenderness, and referencing the “minimal degenerative changes” the record supported). Dr.
Brown specifically evaluated Dr. Winkle’s 11/21/13 report and found it to be “an overestimate of
the severity of [Terrell]’s restrictions / limitations and based only on a snapshot of [Terrell]’s
functioning.” R. at 92. Substantial record evidence, as the Court reviewed above, supports
Brown’s assessment. ALJ Paris, accordingly, properly afforded Brown’s conclusions great
Attempting to counter the state-agency doctors’ conclusions, Terrell tries to assign great
significance to the fact that, based on the timeline, Mannis and Brown could not have reviewed
the results of the September 2014 MRI when issuing their opinions. See DE #15-1, at 8. “The
ALJ” is, however, “entitled to assign significant weight to the opinions from . . . medical
consultants despite the fact that they did not review all of the medical records.” Carter v. Astrue,
886 F. Supp. 2d 1093, 1111 (N.D. Iowa 2012); accord Cook v. Astrue, 629 F. Supp. 2d 925, 93233 (W.D. Mo. 2009) (refusing to adopt “a per se rule that failure to send medical records to be
reviewed . . . automatically results in the opinion of that doctor not being entitled to substantial
Here, of course, the ALJ explicitly considered the September 2014 MRI, see R. at 27-28
(acknowledging this MRI and the results), but still found Terrell to be not disabled. See Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 513 (6th Cir. 2010) (“Even if Dr. Hernandez’s [(a stateagency consultant’s)] RFC was completed without knowledge of [certain medical] issues,
To be sure, a medical source’s inability to examine the full record certainly is not ideal, see,
e.g., Barrett v. Astrue, No. 09-11-GWU, 2009 WL 3270264, at *4 (E.D. Ky. Oct. 9, 2009)
(remanding when doctor did not review critical MRI results and “did not have the opportunity to
see and review the numerous exhibits which came after his November 2004 review”), but on
these facts, for the reasons explained herein, does not require remand.
however, the record reflects that the ALJ considered them.”). ALJ Paris pithily summarized:
“While [the] MRI has identified degenerative disc disease of the cervical spine with significant
spinal and foraminal stenosis, examinations have repeatedly noted few findings to suggest
limitations[.]” R. at 28. Indeed, numerous post-MRI medical reports harmoniously indicate that
Terrell showed improvement and had less severe restrictions than the MRI might itself suggest.
See R. at 343 (6/5/15: Terrell had only “minimal leftward curvature of the lumbar spine,” with
“no acute lumbar spine fracture or subluxation” and merely “[m]ild lower lumbar spine facet
arthropathy.”); id. (Desimone diagnosing only “[m]ild lumbar spine degenerative changes”); R.
at 345 (May 2015: revealing the chiropractor’s objective findings to be significantly less extreme
than Terrell’s subjective complaints); R. at 346-38, 350 (June—August 2015: reporting
continued improvement in Terrell’s symptoms).
Accordingly, here, when the ALJ explicitly considered the disputed piece of medical
evidence and the post-MRI proof is inconsistent with the MRI inferences Plaintiff draws, there is
no error in assigning great weight to the consultants’ conclusions. Ealy, 594 F.3d at 513;
McGrew v. Comm’r of Soc. Sec., 343 F. App’x 26, 32 (6th Cir. 2009) (affirming decision where
“state agency physicians’ opinions . . . did not account for changes in [the claimant’s] medical
condition” but where the ALJ “considered the medical examinations that occurred after [the]
assessment . . . and took into account any relevant changes in [the claimant’s] condition”).
Additionally, nothing in Brown’s or Mannis’s report suggests that the MRI results, on this
record, would have altered the expressed views. Mannis’s report was about psychological issues,
and Brown explicitly acknowledged and was well aware of Terrell’s “degenerative disease” and
“back pain.” R. at 91-92. The ALJ assessed the overall proof in a reasonable manner, rationally
accounted for the post-evaluation MRI, and rested his conclusions on substantial evidence.
The ALJ did not commit reversible error at Step 5.
Terrell additionally contends that, “[g]iven [his] age, education and work history, the
Social Security grid rules direct a finding that he is not able to perform substantial gainful
activity.” DE #15-1, at 5-6. Claimant particularly cites “Grid Rule 202.02” and invokes Winkle’s
examination findings. Id. at 6-7, 9.
This argument relates to the ALJ’s Step 5 determination. See R. at 29. At Step 5, where
the burden shifts to the Commissioner, the ALJ determines whether significant numbers of other
jobs exist in the national economy that the claimant can perform, given the applicable RFC. See
Preslar, 14 F.3d at 1110; 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c)(2). The Sixth Circuit has
described the applicable standard:
At step five, the Commissioner must identify a significant number of jobs in the
economy that accommodate the claimant’s residual functional capacity and
vocational profile. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir.
2003). In many cases, the Commissioner may carry this burden by applying the
medical-vocational grid at 20 C.F.R. Pt. 404, Subpt. P, App. 2, which directs a
conclusion of “disabled” or “not disabled” based on the claimant’s age and
education and on whether the claimant has transferable work skills. Wright v.
Massanari, 321 F.3d 611, 615 (6th Cir. 2003); Burton v. Sec’y of Health &
Human Servs., 893 F.2d 821, 822 (6th Cir. 1990). However, if a claimant suffers
from a limitation not accounted for by the grid, the Commissioner may use
the grid as a framework for her decision, but must rely on other evidence to
carry her burden. Id. In such a case, the Commissioner may rely on the
testimony of a vocational expert to find that the claimant possesses the
capacity to perform other substantial gainful activity that exists in the
national economy. Heston [v. Comm’r of Soc. Sec.], 245 F.3d [528,] 537-38 [(6th
Cir. 2001)]; Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 150 (6th Cir. 1996).
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004) (emphases added); see also
Heston, 245 F.3d at 537.
Foundationally, for the reasons already explained in detail in Part II.B, the ALJ
reasonably discounted Dr. Winkle’s opinions. Terrell’s attempt to rely on Winkle’s report here
likewise is unavailing. The Court views this Winkle-dependent argument, in light of the ALJ’s
reasonable rejection of Winkle’s opinions, to be faulty at root.
Even if the ALJ had given more weight to Winkle’s opinion, however, such reliance
would not mandate a disabled finding under Rule 202.02, per the explicit discussion in Wilson.
Section 202 of Appendix 2 to Subpart P of 20 C.F.R. Part 404 applies to claimants limited,
among other ways, to “light work.” See Heston, 245 F.3d at 538 (“Vocational Rule 202.02
applies if the claimant is capable of performing only light work.”). “Light work involves lifting
no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds.” 20 C.F.R. § 404.1567(b). “Medium work,” for its part, “involves lifting no more than
50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” Id. §
404.1567(c); see also, e.g., Kifayeh v. Colvin, 99 F. Supp. 3d 369, 375-76 (E.D.N.Y. 2015).
Winkle opined that Terrell could lift 40 pounds occasional and 25 pounds frequently—
well in excess of the “light work” requirement, but not quite satisfying the requirements for
“medium work.” See R. at 291. Thus, according to Winkle, Terrell “suffer[ed] from a limitation
not accounted for by the grid,” meaning that the ALJ properly could rely on VE testimony to
make the Step 5 finding. Wilson, 378 F.3d at 548-49; Heston, 245 F.3d at 538 (relying on VE
testimony when the medical source stated that the claimant could lift 30 pounds). Terrell’s
“ability to lift” fell “between the definitions of light and medium work. Therefore, the ALJ could
not accurately make a determination of which jobs [he] could perform by relying solely on . . .
Vocational Rule . . . 202.02.” Heston, 245 F.3d at 538.
Here, the record shows, the VE testified that Terrell did have transferable job skills and
identified jobs that exist in significant numbers, in the national economy, that Terrell could
perform. R. at 54-58. Terrell mounts no specific challenge to the VE’s testimony. In the
circumstances, “the testimony of a vocational expert identifying specific jobs available in the
regional economy that an individual with the claimant's limitation could perform can constitute
substantial evidence supporting an ALJ’s finding at step 5 that the claimant can perform other
work.” Wilson, 378 F.3d at 549; Heston, 245 F.3d at 537-38 (“The ALJ based his finding of facts
on the vocational expert’s determination that there were 3,600 jobs available for someone with
Heston’s capabilities. Heston’s argument that the ALJ improperly relied on [the Grids], in light
of the ALJ’s consideration of Heston’s specific vocational profile and residual functioning
capacity, is without merit.”).11
Per this discussion, the Court finds no error in the ALJ’s Step 5 determination.
For the reasons stated, the Court GRANTS the Commissioner’s motion for summary
judgment (DE #16) and DENIES Terrell’s motion for summary judgment (DE #15). The Court
will enter a separate Judgment.
This the 14th day of June, 2017.
With a transferrable-skills finding, Rule 202.03, as the Commissioner argues, likely would
apply to mandate a “not disabled” finding, yet another reason to uphold the SSA’s measured
determination in these circumstances.
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