Phillips v. SSA

Filing 10

MEMORANDUM OPINION & ORDER re 7 MOTION for Summary Judgment by Jonathan Phillips , 9 MOTION for Summary Judgment by Commissioner of SSA : The Court, having found no legal error on the part of the ALJ and that his decision is supported by substantial evidence, the Acting Commissioners final decision is AFFIRMED. Accordingly, it is hereby ORDERED as follows: (1) Plaintiffs Motion for Summary Judgment [DE 7] is DENIED; (2) Defendants Motion for Summary Judgment [DE 9] is GRANTED; and (3) Judgment in favor of the Defendant will be entered contemporaneously herewith.. Signed by Judge Joseph M. Hood on 9/25/2019.(JMB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
JONATHAN PHILLIPS,
Plaintiff,
v.
ANDREW SAUL, COMMISSIONER OF
SOCIAL SECURITY,1
Defendant.

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Civil Case No.
6:18-cv-135-JMH
MEMORANDUM OPINION
AND ORDER

***
Plaintiff, Jonathan Phillips, brings this matter under 42
U.S.C. § 405(g) seeking judicial review of an administrative
decision of the Acting Commissioner of Social Security.

[DE 1].

The Court, having reviewed the record and the motions, [DE 7; DE
9], filed by the parties, will AFFIRM the Commissioner’s decision
as no legal error occurred and it is supported by substantial
evidence.
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

1
Andrew Saul was sworn in as the Commissioner of Social Security on June 17,
2019.
Still, Nancy Berryhill was serving as Acting Commissioner of Social
Security when this action was filed. Pursuant to Rule 25(d) of the Federal Rules
of Civil Procedure, Commissioner Saul is automatically substituted as a party.

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

substantial
claimant’s

gainful

whether

the

activity;

impairments

are

claimant

Step

Two,

“severe”;

Step

is

still

whether
Three,

performing

any

of

the

whether

the

impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform his past relevant
work; and 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.
Phillips

filed

PROCEDURAL AND FACTUAL HISTORY
an

application

for

disability

insurance

benefits (“DIB”), alleging disability beginning on March 11, 2015,
the date he injured his back in a work-related incident.
199].

Phillips’s

reconsideration.

application

[TR 100-01].

was

denied

initially

[TR 198and

Phillips then pursued his claims

before an Administrative Law Judge (“ALJ”) Dennis Hansen.
57].

upon

The ALJ held the hearing on September 7, 2017.

[TR 39-

[TR 39]. The

ALJ found that Phillips suffered an impairment to his back that
rendered him disabled from the alleged onset date of March 11,
2

2015 through May 5, 2016, and that he was no longer disabled. [TR
18-32].

The Appeals Council denied Phillips’ request for review.

[TR 1-5].
This appeal followed pursuant to 42 U.S.C. § 405(g). [DE 1].
Consistent with the Court’s Standing Scheduling Order, [DE 6], the
parties have submitted cross motions for summary judgment, which
are ripe for review.

[DE 7, 9].

Phillips alleges onset of disability at 27 years of age.
198].

Phillips has a high school education.

[TR 237].

[TR

Phillips’

engaged in past relevant work as a maintenance worker at a school
and as a transporter/maintenance worker at a nursing home.
Phillips

claims

disability

due

to

his

[Id.].

work-related

back

injury, as well as a learning disability and hearing problems.
[TR 236].

At the hearing in front of the ALJ, Phillips testified

that he can only stand for about 10 minutes before needing to sit
down.

[TR 41-51].

Phillips further testified that he can only

sit for approximately 10 minutes before needing to readjust and he
cannot lift 10 pounds. [Id.].
Phillips testified that he lives at home with his wife and
daughter.

[TR 42].

Phillips further testified that he does not

go to the grocery store, nor is he able to help with chores around
the house.

[Id.].

However, he did testify that he is able to

drive “every now and then[.]” [TR 43].

To find relief, Phillips

claims that has to lay down about 6 times a day for about an hour
3

each time.

[Id.]. Phillips testified that he also uses ice packs,

which help some with relieving pain.

[TR 47].

In March 2015, Phillips went to the ER with complaints of
back pain after falling off a ladder several days prior.
95].

[TR 389-

Upon March and April follow-up appointments with Dr. Dahhan,

M.D. On April 10, 2015, Phillips submitted to an MRI examination,
which revealed disc protrusion contributing to severe central
stenosis.

[TR 397-431, 447-51, 581-82].

As a result, Dr. Dahhan

recommended that Phillips not lift over twenty-five pounds for
several months, but advised that Phillips could return to light
work.

[TR 541].
Phillips followed up with Dr. William Brooks throughout the

rest of 2015 and early 2016.

[TR 444-47. 543-61].

In January of

2016, Phillips underwent a bilateral discectomy at L4-L5.
497-524].

[TR

Following surgery, Phillips undertook physical therapy.

[TR 570-846, 880-81].
Dr. Brooks recommended Phillips not work until a functional
capacity

evaluation

(“FCE”)

had

been

done.

[TR

543].

He

subsequently recommended that Phillips undergo such an evaluation,
which Phillips did.

[TR 850-61].

The FCE occurred on May 6, 2016.

Thereafter, Dr. Brooks concluded that Phillips had reached maximum
medical improvement (“MMI”) as of the date of the FCE, had a whole
person impairment of thirteen (13%) percent, and could perform
sedentary work. [TR 541].

Following the FCE, Phillips continued
4

to follow-up with complaints of low back and leg pain.

[TRE 935-

51, 973-76, 980-83]. A state agency doctor, Diosdado Irlandez
concluded that Phillips could carry 20 pounds occasionally and 10
pounds frequently; stand and walk two hours in an eight-hour
workday; sit six hours; occasionally use his legs; occasionally
crawl, stoop, and climb ramps and stairs, frequently kneel and
crouch; never climb ladders, ropers, or scaffolds; and should avoid
even moderate exposure to vibration and all exposure to hazards.
[TR. 114-17].
In addition to his issues with his back, Phillips also sought
treatment related to his psychological condition.

In particular,

Phillips received an evaluation from Dr. William Rigby, Ph.D., who
diagnosed Phillips with anxiety, and had mild mental work-related
limitations.

[TR

911-16].

Dr.

Rigby

opined

that

Phillips

psychological impairments area likely to continue indefinitely.
[Id.].
In addition to Dr. Rigby, Kirstin Bailey, Ph.D., a state
psychologist,

also

reviewed

Phillips’

medical

records

and

concluded they were not severe. [TR 89-92]. Another psychologist,
Dan Vandivier, Ph.D., concurred with Dr. Bailey’s conclusion. [TR
110-113].
After the hearing and considering all the evidence, the ALJ
issued his decision on December 7, 2017.

5

[TR 33].

At Step One,

the ALJ determined that Phillips had not engaged in substantial
gainful activity since March 11, 2015.

[TR 22].

At Step Two, the ALJ found that from March 11, 2015 through
May 4, 205, the period during which the Phillips was under a
disability,

Phillips

suffered

impairments:

obesity,

lumber

from

the

degenerative

borderline intellectual functioning.

[TR 22].

following
disc

severe

disease,

and

The ALJ also found

that Phillips suffered the following acute conditions, all of which
lasted less than twelve months: otitis media, allergic rhinitis,
and gastritis.

[Id.].

The ALJ noted that Phillips was diagnosed by Dr. Rigby with
anxiety disorder, but Phillips did not meet the full diagnostic
criteria for the condition.

[Id.].

As a result, the ALJ found

that Phillips anxiety was not a severe impairment within the
meaning of the applicable regulations.

[Id.].

At Step Three, the ALJ found that from March 11, 2015 through
May 5, 2015, the claimant did not have an impairment or combination
of impairments that met or medically equaled the severity of any
of the listed impairments.

[TR 22].

In reaching this conclusion,

the ALJ found that Phillips had the following degree of limitation
in functioning: moderate limitation in understanding, remembering,
or applying information; a moderate limitation in interacting with
others; a moderate limitation in concentrating, persisting, or
maintaining pace; and a moderate limitation in adapting or managing
6

oneself. [Id.].

The ALJ further found that that Phillips’ mental

impairments had not changed during any time relevant to the
decision. [TR 22].
Before proceeding to Step Four, the ALJ found that Phillips
had the residual functional capacity (“RFC”) to perform sedentary
work

as

defined

in

in

20

C.F.R.

§

404.1567(a).

[TR

23].

Specifically, the ALJ found Plaintiff could perform the following
tasks:
The opportunity to change positions from sitting
to standing and vice versa every ten minutes;
could occasionally climb ramps and stairs; could
occasionally stoop, kneel, crouch, or crawl; could
occasionally push and pull with lower extremities;
should avoid exposure to vibration; could never
climb ladders, ropes, or scaffolds; could never be
exposed to unprotected heights or dangerous moving
machinery;
could
perform
work
where
the
requirements do not exceed a 7th grade arithmetic
and 4th grade reading ability; could understand
and remember simple instructions; could sustain
attention and concentration to complete simple
tasks with regular breaks every 2 hours; could
have occasional interaction with supervisors,
coworkers, and the public; could adapt to routine
work conditions and occasional work place changes
that are gradually introduced.
[TR 23].
At Step Four, the ALJ concluded that from March 11, 2015 to
May 5, 2016, based on Phillips’ RFC, that Phillips was unable to
perform any past relevant work as a maintenance repairer, building,
a medium, skilled occupation, but heavy as actually performed by
Phillips.

[TR 25].

The ALJ further concluded that Phillips could
7

no longer perform his past relevant work as van driver during that
time period. [Id.].
In addition, the ALJ determined that given Phillips’s age,
education, work experience, and RFC, there were no jobs existing
in significant numbers in the national economy that Phillips could
have performed between March 11, 2015 through May 5, 2016.
26].

ALJ

Hansen

based

his

conclusion

on

testimony

[TR

from

a

vocational expert (“VE”), who testified that given all the factors,
including Phillips’s age, education, work experience, and RFC as
determined between March 11, 2015 through May 5, 2015, that no
jobs existed in the national economy that Phillips could have
performed.

[TR 25-26].

Thus, the ALJ determined that Phillips

was disabled under the Act during those periods.

[Id.].

The ALJ stated that medical improvement occurred as of May 6,
2016, the date Phillips’s disability ended.
relied

primarily

on

Phillips’s

neurosurgeon

[TR 29].
who

The ALJ

stated

that

Phillips has reached maximum medical improvement as of that date.
[Id.]. The ALJ went further to state that Phillips had no new
impairments since May 6, 2016, the date his disability ended.
26].

[TR

Thus, Phillips’s current severe impairments are the same as

those between March 11, 2015 and May 5, 2016. [Id.]. Accordingly,
the ALJ went through the sequential steps for this period of time.
Step One, as discussed above, did not change. However, at
Step Two, Phillips’s medical improvement, the ALJ concluded, had
8

resulted in an increase in Phillips’s RFC, though he finds that
Phillips’ mental impairment and obesity remain.

[TR 29].

As a result, between Step Three and Four, the ALJ found that,
from May 6, 2016 on, Phillips had the RFC to perform sedentary
work

as

defined

in

in

20

C.F.R.

§

404.1567(a).

[TR

23].

Specifically, the ALJ found Plaintiff could perform the following
tasks:
Occasionally
climb
ramps
and
stairs,
can
occasionally stoop, kneel, crouch, and crawl; can
occasionally push and pull with the lower
extremities; should avoid exposure to vibration;
can never climb ladders, ropes, or scaffolds; can
never be exposed to unprotected heights or
dangerous moving machinery; can perform work where
the requirements do not exceed 7th grade arithmetic
and 4th grade reading ability; can understand and
remember simple instructions; can sustain attention
and concentration to complete simple tasks with
regular breaks every 2 hours; can have occasional
casual interaction with supervisors, coworkers, and
the public; can adapt to routine work conditions
and occasional work place changes that are
gradually introduced.
[TR 29].
Thus, At Step Four, the ALJ concluded that from May 6, 2016
on, based on Phillips’s RFC, that Phillips was still unable to
perform any past relevant work as a maintenance repairer, building,
a medium, skilled occupation, but heavy as actually performed by
Phillips.

[TR 32].

Nor could he perform his past relevant work

as van driver during that time period. [Id.].

9

The ALJ noted that Phillips’ age and education level had not
changed since May 5, 2016.

[TR 32].

However, the ALJ determined

that given Phillips’s age, education, work experience, and RFC,
there were jobs existing in significant numbers in the national
economy that Phillips could perform.

[TR 33].

ALJ Hansen based his conclusion on testimony from a vocational
expert (“VE”), who testified that given all the factors, including
Phillips’ age, education, work experience, and RFC that Plaintiff
could be able to perform the requirements of occupations such as
hand bander (13,950 jobs nationally), table worker, fabrication
(12,326 nationally), and final assembler (31,00 nationally).
33].

[TR

Thus, the ALJ concluded that, since May 6, 2016, Phillips

was capable of making a successful adjustment to work that exists
in significant numbers in the national economy. Thus, the ALJ
determined that Phillips was not disabled under the Act as of that
date or beyond. [Id.].
In support of his motion for summary judgment, [DE 7],
Phillips makes two arguments. First, Phillips argues that the ALJ’s
finding, that Phillips was no longer disabled after May 5, 2016,
was not supported by substantial evidence.
PageID #1027-31].

[DE 7-1 at 11-15,

Second, he argues that the ALJ failed to

properly evaluate Phillips’ subjective complaints of pain.

[Id.

at 15-16, PageID #1031-32]. The Commissioner contends that the
ALJ’s decision was proper and should be affirmed.
10

III. STANDARD OF REVIEW
When reviewing the ALJ’s ruling, 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) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th
Cir. 2007)).

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.

We are to

affirm the decision, provided it is supported by substantial
evidence, even if we might have decided the case differently.

See

Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
IV.
A.

ANALYSIS

The ALJ’s Determination, That Phillips was not Disabled as
of May 6, 2016, is Supported by Substantial Evidence.
The ALJ determined that Phillips was disabled between March

11, 2015 and May 6, 2016.

[TR 26-27].

However, he found that

Phillips was not disabled as of May 6, 2016.

[TR 27-33]. The

fundamental distinction between these findings is that, as of May
6, 2016, the ALJ found that Phillips was still limited to sedentary

11

work, but no longer needed the ability to change positions from
sitting to standing every 10 minutes.

[TR 30-31].

Phillips argues that ALJ’s RFC finding was not supported by
substantial evidence.

[DE 7-1 at 11-15, PageID #1027-31]. In

particular, claims that “the combined effects of Mr. Phillips’
physical and mental impairments, reflect that he could not perform
a wide range of even sedentary work on a regular and sustained
basis.”

[DE 7-1 at 11, PageIDE 1027].

In support of his argument, Phillips claims that the ALJ
should not have relied on the FCE evaluator’s conclusion that
Phillips could perform sedentary work. [DE 7-1 at 13-14, PageID
#1030-31].

In addition, he claims that Dr. Brooks’s letter of

July

2016,

25,

diagnosing

Phillips

with

a

“herniated

intervertebral disc at L4-L5” undermines the ALJ’s finding that
Phillips could perform sedentary work.
The

Commissioner

disagrees.

He

[Id.].
states

that

the

ALJ’s

findings are grounded in the substantial evidence in the record.
[TR 9 at 6, PageID #1043].

First, the Commissioner argues that

the ALJ correctly relied on the FCE in making his finding that
Phillips could perform sedentary work. [DE 9 at 6-7, PageID #104344].

Second, the Commissioner argues that Brooks’s letter does

not undermine, but in fact, supports the ALJ’s determination that
Phillips could perform sedentary work. [DE 9 at 7, PageID #1044].
We agree with the Commissioner.
12

In the instant case, the ALJ relied on considerable objective
evidence in the record indicating that Phillips’s condition had
improved, and that he was, indeed, capable of performing sedentary
work, but no longer needed the ability to change positions from
sitting to standing every 10 minutes.

[TR 30-31].

In making his findings, the ALJ also relied, in part, on the
FCE evaluation of Phillips. [TR 30]. In January of 2016, Phillips
underwent

a

bilateral

discectomy

at

L4-L5.

[TR

497-524].

Following surgery, Phillips undertook physical therapy.

[TR 570-

846, 880-81]. Dr. Brooks recommended Phillips not work until a
functional capacity evaluation (“FCE”) had been done.

[TR 543].

Phillips did the FCE with physical therapist, Tim Yost, on
May 6, 2016. [TR 953-967]. Yost concluded that Phillips could
performed a range of sedentary work. [TR 30, 953-67]. The ALJ gave
significant weight to Yost’s assessment.
that

this

reliance

was

misplaced

[TR 30]. Phillips argues

because

the

report

“noted

specifically that the claimant...would not be able to complete a
full work day, would only be able to do sitting for 34% to 66% of
the day and he can only do standing work for 1% to 5% of the day.”
[DE 7-1 at 14, PageID #1030].
However, both the bulk of the evidence, including imaging
studies, supports the ALJ’s reliance on Yost’s conclusion.

For

example, Phillips’s February 2016 MRI showed persistent stenosis,
it showed no herniation, [TR 30, 897], and a subsequent August
13

2016 x-ray was normal.

[TR 31, 926]. Additionally, Dr. Brooks

noted that Phillips had improved after surgery, had no recurrence
of instability, and no progression of symptoms. Furthermore, Dr.
Brooks, relying on the physical therapy assessment, noted that
that Phillips can perform other work with retraining.
538-61, 882-909].

[TR 30-31,

Thus, the ALJ found that removing Phillips’s 10

minute sit/stand option was consistent with the evidence of postsurgical

improvement.

limitations

caused

[TR

by

the

31].

As

Phillips’s

a

result,

despite

self-limiting

the

behavior,

Phillips’s ability to perform sedentary work is consistent with
the bulk of the evidence. [TR 31].
Phillips next argues that he claims that Dr. Brooks’s letter
of

July

25,

2016,

diagnosing

Phillips

with

a

“herniated

intervertebral disc at L4-L5” undermines the ALJ’s finding that
Phillips

could

perform

sedentary

work.

[Id.].

However,

as

correctly noted by the Commissioner, [DE 9 at 7, PageID #1044],
Dr. Brooks’s letter, in fact, supports the ALJ’s finding. [TR 884].
It

states

Evaluation.

“[Phillips]

has

completed

a

Functional

Capacity

It states that he is capable of doing sedentary work.

He is unable to work beyond those limitations.”

[TR 884].

Phillips fails to persuade us that the ALJ's reliance on Dr.
Brooks's findings and the FCE was misplaced.
decision

supported

substantial

by

evidence

substantial
in

the

evidence

record
14

to

We must affirm a
even

support

if
an

there

is

opposite

conclusion. However, as the ALJ's assessment is supported by
substantial evidence, we need not consider whether the evidence
also could support a contrary determination.
B.

The ALJ Properly Evaluated Phillips’s Subjective Complaints
of Pain.
Phillips also argues that the Commissioner failed to properly

evaluate his subjective complaints of pain.
PageID #1031-32].

[DE 7-1 at 15-16,

At the hearing, Phillips testified that that he

can only stand for about 10 minutes before needing to sit down and
can only sit for approximately 10 minutes before needing to
readjust and he cannot lift 10 pounds. [TR 41-51].

Phillips

further testified that he does not go to the grocery store, nor is
he able to help with chores around the house.

[Id.].

However, he

did testify that he is able to drive “every now and then[.]” [TR
43].

To find relief, Phillips claims that has to lay down about

6 times a day for about an hour each time.

[Id.]. Phillips

testified that he also uses ice packs, which help some with
relieving pain.

[TR 47].

Phillips also testified that his back

surgery made his problems worse.

[Id.].

Phillips now argues that the ALJ “failed to properly assess
the entirety of the medical evidence including all these additional
medical problems[,] which are resulting in additional levels of
pain for Mr. Phillips.”

[DE 7-1 at 16, PageID #1032].

In support,

Phillips claims he has a further decreased tolerance to perform

15

any type of physical activity, including sitting, standing, or
walking as well as psychological issues.

[Id.].

Phillips also

states that his “testimony regarding pain level is uncontradicted
in the record.”

[Id.].

Notably, Phillips does not state what

exact testimony is uncontradicted. Nor does Phillips recount how
his testimony is supported by the medical evidence in the record.2
Regardless, the Commissioner disagrees with Phillips.

The

Commissioner argues that the ALJ “...gave good reasons for finding
his claims of disabling pain after May 6, 2016, to be unsupported
by the record.”
Commissioner

[DE 9 at 8, PageID #1045].

states

that

upon

examination

In support, the
in

October

2015,

Phillips showed no negative straight leg raise tests, no neurologic
concerns, and no strength deficits.

[DE 9 at 8, PageID #1045].

Next, while a post-surgery MRI in January 2016 revealed mild to
moderate stenosis, it showed no recurrent herniation. [Id.]. An
August 2016 x-ray was normal.

[Id.].

Moreover, the ALJ found

that Phillips appeared to self-limit during an FCE evaluation,
which resulted in inability to determine his maximum work ability.
[Id. at 9, PageID #1046]. Finally, the Commissioner notes that no
treating, examining, or non-examining source has indicated that

2

Phillips relies on Social Security Ruling (“SSR”) 96-7p, which interpreted SSA
Regulation, 20 C.F.R. § 404.1529, in setting forth a two-step process for
evaluating subjective complaints.
[DE 7-1 at 15, PageID #1031].
Phillips
implies that SSR 96-7p required the ALJ to make a finding on the credibility of
Phillips’ statements. [Id. at 16, PageID #1032]. However, as correctly noted
by the Commissioner, [DE 9 at 8, n. 4, PageID #1045], SSR 96-7p was superseded
by SSR 16-3p.

16

Phillips was more limited than the ALJ found after May 6, 2016.
[Id.].

As

a

result,

the

Commissioner

argues

that

the

ALJ’s

evaluation of Phillips’s subjective complaints was proper and
supported by the regulations and the record.
When

evaluating

a

disability

claim

[Id.].
for

We agree.

social

security

purposes, the claimant's pain should be considered. Kirk v. Sec.
of Health and Human Servs., 667 F.2d 524, 538 (6th Cir. 1981).
Both the Social Security Administration (“SSA”) and the Sixth
Circuit have guidelines for analyzing a claimant's subjective
complaints of pain. The SSA regulations are set forth in 20 C.F.R.
§

404.1529.

The

Sixth

Circuit's

guidelines

for

evaluating

a

claimant's assertions of disabling pain are set forth in Duncan v.
Sec'y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986).
The Sixth Circuit laid out these guidelines as follows:
First, we examine whether there is objective
medical evidence of an underlying medical
condition. If there is, we then examine: (1)
whether objective medical evidence confirms
the severity of the alleged pain arising from
the condition; or (2) whether the objectively
established medical condition is of such a
severity that it can reasonably be expected to
produce the alleged disabling pain.
Id.

The Sixth Circuit explicitly noted in this decision that

the test “does not require ... ‘objective evidence of the pain
itself.’”

Id. (quoting Green v. Schweiker, 749 F.2d 1066, 1071

(3d Cir. 1984)).

However, as the Sixth Circuit clarified in

Felisky v. Bowen, 35 F.3d 1027, 1038–39 (6th Cir. 1994), “[b]oth
17

the SSA standards and the Duncan test require objective medical
evidence showing an underlying medical condition.” Felisky, 35
F.3d at 1038–39 (6th Cir. 1994) (emphasis added).
In the instant case, the ALJ found Phillips’s medically
determinable impairments could reasonably be expected to produce
the alleged symptoms.
Phillips’

statements

[TR 30].
about

the

However, the ALJ found that
intensity,

persistence,

and

limiting effects of his symptoms are inconsistent with the medical
evidence.

[TR 30]; see 20 C.F.R. § 404.1529(c)(4).

The ALJ’s

finding is supported by substantial evidence in the record.
In particular, the ALJ found that Phillips’s statement that
his back surgery made his problems “three times worse” was not
supported by the medical evidence, which showed no recurrence,
progression, or instability, a negative straight leg raise, and no
weakness.

[TR 24, 30, 444, 544].

The ALJ further noted that while

Phillips’s February 2016 MRI showed persistent stenosis, it showed
no herniation, [TR 30, 897], and an August 2016 x-ray was normal.
[TR 31, 926].

Moreover, Phillips appeared to self-limit during an

FCE evaluation, which resulted in inability to determine his
maximum

work

ability.

[TR

30,

850].

Phillip

was

observed

grimacing, exaggerating his movement patters, and engaging in pain
talk.

[TR 850].

Finally, as the Commissioner notes, no treating,

examining, or non-examining source has indicated that Phillips was

18

more limited than the ALJ found after May 6, 2016.

[Id.].

Nor

has Phillips pointed to any such source or evidence.
As for his psychological complaints, the ALJ found that
“[t]here is nothing in the record to suggest [Phillips] lacks the
ability to conform his behavior to societal standards.”

[TR 27].

Indeed, the ALJ stated that Phillips’s mental impairments have not
changed since May 6, 2016.

[TR 31, 910-16].

The ALJ relied on

Dr. Rigby’s finding that that Phillips did not put forth good
effort during Dr. Rigby’s evaluation, thus making his scores
inconclusive, and his results “not reflective of [Phillips’s] true
mental capacity.” [Id.]
The ALJ's evaluation of Phillips’s testimony is entitled to
deference by this Court.

Cruse v. Comm'r of Soc. Sec., 502 F.3d

532, 542 (6th Cir. 2007).

As stated previously, “[t]he Court may

not re-weigh the evidence and substitute its own judgment for that
of the Commissioner merely because substantial evidence exists in
the record to support a different conclusion.” Putman v. Astrue,
2009 WL 838155 at *5 (E.D. Tenn. Mar. 30, 2009).

So long as the

ALJ cited substantial evidence to support his conclusions, this
Court may not re-evaluate his determinations. Ulman v. Comm'r of
Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012).
When considering all medical evidence and Phillips’s personal
testimony regarding his activities, the ALJ properly evaluated his
subjective complaints of pain.

Because the ALJ’s evaluation is
19

supported by substantial evidence, it is entitled to deference.
Thus, remand is unwarranted.
V.

CONCLUSION

The Court, having found no legal error on the part of the ALJ
and that his decision is supported by substantial evidence, the
Acting Commissioner’s final decision is AFFIRMED.
Accordingly, it is hereby ORDERED as follows:
(1)

Plaintiff’s

Motion

for

Summary

Judgment

[DE

7]

is

Defendant’s

Motion

for

Summary

Judgment

[DE

9]

is

DENIED;
(2)

GRANTED; and
(3)

Judgment in favor of the Defendant will be entered

contemporaneously herewith.
This the 25th day of September, 2019.

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