Fulton v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 5/6/2022: IT IS HEREBY ORDERED that the final decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that judgment is granted for the Commissioner. cc:counsel (EAS)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 4:20-CV-00189-HBB
WARREN KEITH FULTON
KILOLO KIJAKAZI, ACTING COMMISSIONER1
SOCIAL SECURITY ADMINISTRATION
Before the Court is the complaint (DN 1) of Warren Keith Fulton (“Plaintiff”) seeking
judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both
Plaintiff (DN 21) and Defendant (DN 26) have filed a Fact and Law Summary. For the reasons
that follow, the final decision of the Commissioner is AFFIRMED, and judgment is GRANTED
for the Commissioner.
Pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 17). By Order entered June 21,
2021 (DN 18), the parties were notified that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was filed.
Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for Andrew Saul as the defendant in this suit.
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FINDINGS OF FACT
Plaintiff filed an application for Disability Insurance Benefits on November 30, 2018
(Tr. 15, 168-71). Plaintiff alleges to have become disabled on April 27, 2018, as a result of back
surgery, neck surgery, spinal stenosis, and arthritis in both feet (Tr. 15, 70, 82, 195). This claim
was initially denied on February 16,2 2019, and the claim was again denied upon reconsideration
on May 24, 2019 (Tr. 15, 78-79, 93-94). Thereafter, Plaintiff filed a written request for a hearing
before an administrative law judge (Tr. 15, 114-15).
Administrative Law Judge Meribeth McMahon (“ALJ”) conducted a video hearing from
Paducah, Kentucky on February 5, 2020 (Tr. 15, 29-31). Virtually present at the hearing from
Madisonville, Kentucky was Plaintiff and his attorney Steven Wilson (Id.). During the hearing,
James B. Adams testified as a vocational expert (Id.).
On April 15, 2020, the ALJ rendered a decision that Plaintiff was not disabled pursuant to
the five-step sequential process (Tr. 15-23). At the first step, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since April 27, 2018, the alleged onset date (Tr. 17). At
the second step, the ALJ determined Plaintiff has two severe impairments: degenerative disc
disease and osteoarthritis (Id.). The ALJ opined that Plaintiff’s insomnia, obesity, and anxiety
and depression do not rise to the level of a severe impairment (Tr. 18). At the third step, the ALJ
concluded that Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in Appendix 1 (Id.).
The ALJ’s opinion listed the date of the initial denial as February 18, 2019 (Tr. 15). The Disability
Determination and Transmittal documents, as well as the date accompanying the signature of the Disability
Adjudicator/Examiner, list the date as February 16, 2019 (Tr. 78-79). Thus, the Court will use February 16.
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At the fourth step, the ALJ found that Plaintiff has the residual functional capacity (“RFC”)
to perform light work except for the following limitations: Plaintiff can lift and carry up to 20
pounds occasionally and 10 pounds frequently; he should never reach overhead with the right
upper extremity; he can frequently handle and finger with the bilateral upper extremities; he can
sit, stand, and walk up to one hour at a time, for a total of six hours each in an eight-hour day with
normal breaks; he should never climb ladders, ropes, scaffolds, ramps, or stairs; he should never
balance, kneel, or crawl; he can occasionally stoop or crouch; and he should avoid concentrated
exposure to vibrations, unprotected heights, or dangerous machinery (Id.).
The ALJ found
Plaintiff is unable to perform any past relevant work (Tr. 21).
After this finding, the ALJ went to the fifth step, where the ALJ also considered Plaintiff’s
RFC, age, education, and past work experience, as well as testimony from the vocational expert,
to find that Plaintiff is able to perform other jobs that exist in the national economy (Tr. 21-22).
Therefore, the ALJ concluded that Plaintiff has not been under a “disability,” as defined in the
Social Security Act, since April 27, 2018, the alleged onset date, through the date of the decision,
April 15, 2020 (Tr. 22-23). The ALJ also noted that she used the Medical-Vocational Guidelines
as a framework to support the finding that Plaintiff is “not disabled” (Tr. 21-22).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision
(Tr. 163-65). The Appeals Council denied Plaintiff’s request for review (Tr. 1-3).
CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by “substantial evidence,” 42 U.S.C. § 405(g); Cotton
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v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Hum. Servs., 974 F.2d
680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health & Hum. Servs., 803 F.2d 211, 213 (6th Cir. 1986). “Substantial evidence exists when
a reasonable mind could accept the evidence as adequate to support the challenged conclusion,
even if that evidence could support a decision the other way.” Cotton, 2 F.3d at 695 (quoting
Casey v. Sec’y of Health & Hum. Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a
case for substantial evidence, the Court “may not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.” Cohen v. Sec’y of Health & Hum. Servs., 964 F.2d
524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision (Tr. 1-3). At that point, the ALJ’s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality
of the Commissioner’s decision). Thus, the Court will be reviewing the decision of the ALJ, not
the Appeals Council, and the evidence that was in the administrative record when the ALJ rendered
the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir. 1993).
The Commissioner’s Sequential Evaluation Process
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq., 1381 et seq.
The term “disability” is defined as an
[I]nability 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 twelve (12) months.
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42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a); Barnhart v.
Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See “Evaluation of disability in general,” 20
C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
Is the claimant engaged in substantial gainful activity?
Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?
Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Does the claimant have the residual functional capacity to
return to his or her past relevant work?
Does the claimant’s residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
Here, the ALJ denied Plaintiff’s claim at the fifth step.
Challenge to Finding No. 5: RFC and the Medical Evidence
1. Arguments of the Parties
Plaintiff asserts that the ALJ substituted her medical findings in place of those in the record
(DN 21, pp. 7-9). As an example of this substitution, Plaintiff focuses on the ALJ’s notation that
Plaintiff denied problems with ambulation (Tr. 20), but Plaintiff asserts that “a lack of problems
with ambulation does not equate to a lack of pain” and the record, instead, details no limp with
ambulation and leg and back pain (DN 21, p. 7) (citing Tr. 675). Additionally, Plaintiff argues
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that “the ALJ’s statement that ‘the claimant has responded fairly well to these operations’ is a
subjective and misguided interpretation of the medical evidence” (Id.) (citing Tr. 19). In support
of this statement, the ALJ cites to two instances of Plaintiff’s condition improving, which Plaintiff
conflates to the ALJ “suggesting that any minor improvement in the claimant’s conditions is
sufficient to defeat his claim for disability” (Id.). Additionally, Plaintiff looks to another portion
of the ALJ’s analysis where “the ALJ cites to a single instance where the claimant reported ‘mild’
pain, and uses that to defeat all other allegations of pain in the record[,]” and Plaintiff is “puzzled”
by the ALJ’s citation to three dates in 2019 “which demonstrate severe limitations with respect
to claimant’s use of his upper extremities” but the ALJ relies upon a 2018 medical record “to
negate the objective medical findings from 2019” (Id. at p. 9) (citing Tr. 20). “By selectively
citing to these rare instances of improvement and relief, the ALJ is overlooking the bulk of the
medical evidence of record” (Id. at p. 7).
Defendant, in contrast, posits that “the ALJ’s analysis closely tracked the regulatory
guidance” (DN 26, p. 12). Defendant asserts that an ALJ “must determine the extent to which
symptoms, such as pain, impact functionality” and the relevant factors to evaluate “non-objective
evidence” includes considerations of location, duration, frequency, and intensity of pain,
aggravating factors, and measures to alleviate the pain (Id. at pp. 12-13) (citing 20 C.F.R.
§ 404.1529; SSR 16-3p). Each of the factors detailed in § 404.1529 and SSR 16-3p was “closely
track[ed]” by the evidence cited in the ALJ’s determination (Id. at p. 14). Defendant also iterates
that this finding “is entitled to ‘great weight and deference’” (Id. at p. 13) (quoting Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)). Thus, Defendant asserts that “Plaintiff’s
argument does not suffice as a basis for disturbing the Commissioner’s decision” (Id. at p. 18).
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The RFC finding is the administrative law judge’s ultimate determination of what a
claimant can still do despite their physical and mental limitations. 20 C.F.R. §§ 404.1545(a),
404.1546(c). The administrative law judge makes this finding based on a consideration of
medical source statements and all other evidence in the case record. 20 C.F.R. §§ 404.1529,
404.1545(a)(3), 404.1546(c). Thus, in making the RFC finding, the administrative law judge
must necessarily evaluate the persuasiveness of the medical source statements in the record and
assess the claimant’s subjective allegations. 20 C.F.R. §§ 404.1520c, 404.1529(a).
The new regulations for evaluating medical opinions are applicable to Plaintiff’s case
because she filed her application after March 27, 2017 (Tr. 15, 168-71). See 20 C.F.R. §§
404.1520c, 416.920c. The new regulations explicitly indicate “[w]e will not defer or give any
specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s),” in the record, even if it comes from a treating medical source.
20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, administrative law judges will now evaluate
the “persuasiveness” of medical opinions and prior administrative medical findings by utilizing
the five factors listed in paragraphs (c)(1) through (c)(5) of the regulation.
20 C.F.R. §§
404.1520c(a) and (b), 416.920c(a) and (b). The five factors are supportability, consistency,
relationship with the claimant, specialization, and other factors.
20 C.F.R. §§
Of these five factors, the two most important are
supportability and consistency. 20 C.F.R. §§ 404.1520c(a) and (b)(2), 416.920c(a) and (b)(2).
Further, the regulation requires administrative law judges to explain how they considered the
supportability and consistency factors in determining the persuasiveness of the medical source’s
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20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
Notably, under the regulations
administrative law judges “may, but are not required to, explain how” they considered the three
other factors in determining the persuasiveness of the medical source’s opinion. 20 C.F.R. §§
In assessing a claimant’s RFC, the administrative law judge must necessarily consider the
subjective allegations of the claimant and make findings. 20 C.F.R. §§ 404.1529, 416.929;
SSR 16-3p. A claimant’s statement that they are experiencing pain or other symptoms will not,
taken alone, establish that they are disabled; there must be medical signs and laboratory findings
which show the existence of a medical impairment that could reasonably be expected to give rise
to the pain and/or other symptoms alleged.
20 C.F.R. §§ 404.1529(a), 416.929(a).
determining whether a claimant suffers from debilitating pain and/or other symptoms, the two-part
test set forth in Duncan v. Sec’y of Health & Hum. Servs., 801 F.2d 847, 853 (6th Cir. 1986),
applies. First, the administrative law judge must examine whether there is objective medical
evidence of an underlying medical condition. If there is, then the administrative law judge must
determine: “(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
severity that it can reasonably be expected to produce the alleged disabling pain.” Id. When the
reported pain and/or other symptoms suggest an impairment of greater severity than can be shown
by objective medical evidence, the administrative law judge will consider other information and
factors which may be relevant to the degree of pain alleged. 20 C.F.R. §§ 404.1529(c)(3),
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A claimant’s level of daily activity is a factor which the administrative law judge may
consider in determining the extent to which pain is of disabling severity.
20 C.F.R. §§
404.1529(c)(3)(i), 416.929(c)(3)(i); Bogle v. Sullivan, 998 F.2d 342, 348 (6th Cir. 1993); Blacha
v. Sec’y of Health & Hum. Servs., 927 F.2d 228, 231 (6th Cir. 1990) (As a matter of law, the
Administrative Law Judge may consider household and social activities in evaluating complaints
of disabling pain.). The frequency that a claimant sought treatment for the allegedly disabling
impairment(s) is also a factor that may be considered in assessing their subjective complaints. 20
C.F.R. §§ 404.1529(c)(3)(v) and 416.929(c)(3)(v).
Additionally, another consideration is
whether there are “any inconsistencies in the evidence and the extent to which there are any
conflicts between your statements and the rest of the evidence . . . .” 20 C.F.R. §§ 404.1529(c)(4),
416.929(c)(4). Finally, the medication used to alleviate the alleged pain or other symptoms may
be considered. 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv).
In the present case, the ALJ found from the medical record and Plaintiff's testimony that
Plaintiff does not suffer pain to the extent he testified (Tr. 19). In the absence of detailed
corroborating evidence of Plaintiff's subjective complaints, it becomes the duty of the ALJ to
resolve the issue of Plaintiff's credibility. Since tolerance of pain and/or other symptoms is a
highly individualized matter, and a determination of disability based on pain depends, of necessity,
largely on the credibility of the claimant, the conclusion of the ALJ, who has the opportunity to
observe Plaintiff’s demeanor, “should not be discharged lightly.” Houston v. Sec’y of Health &
Hum. Servs., 736 F.2d 365, 367 (6th Cir. 1984) (citing Beavers v. Sec’y of Health, Educ. &
Welfare, 577 F.2d 383 (6th Cir. 1978)).
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Plaintiff’s arguments amount to contentions that the ALJ selectively cited to the record and
ignored other portions of the record (DN 21, p. 7). Beginning with the comment that Plaintiff
responded to lumbar fusion surgery “fairly well,” the ALJ mentioned that Plaintiff “has a history
of degenerative disc disease with surgical intervention” (Tr. 19). This surgery occurred on April
20, 2018 (Id.; see also Tr. 565). The ALJ detailed the subsequent medical visits and discussed
Plaintiff’s pain and ambulation reports (Tr. 19-20). Specifically, the ALJ’s recitation is as
First, with respect to the claimant’s lumbar spine, the claimant’s
lower extremity pain was noted to have resolved on postoperative
follow-up on July 17, 2018. The claimant’s low back pain was also
noted to continue to improve. (Exhibit 3F/18). More recently, on
September 9, 2019, the claimant was reported to have chronic issues
with pain in his lumbar spine as well as his thoracic spine. (Exhibit
9F/4). Magnetic resonance imaging of the thoracic spine was
previously reported to show some degenerative change from T2 to
T7. (Exhibit 9F/60). Yet, the claimant’s pain did not radiate to the
lower extremities, and the claimant was noted to get some relief
from the pain medication Norco. (Exhibit 9F/4). The claimant’s
back pain was similarly reported to not radiate down the claimant’s
legs on July 9, 2019. (Exhibit 9F/26). Further, while a systems
review on April 29, 2019, was positive for a gait problem,
subsequent systems reviews on July 9, 2019, and August 8, 2019,
reflected the claimant denying problems with ambulation. (Exhibit
9F/16, 25, 43).
Plaintiff’s argument pertains to the last part of the last sentence of the above paragraph.
Plaintiff contends that the documentation does not support the ALJ’s conclusion to this effect and
that, even then, denying ambulation problems on August 8, 2019, does not “equate to a lack of
pain” (DN 21, p. 7). One issue with Plaintiff’s argument is that he cites to Tr. 675 (Exhibit 9F/60)
to argue the ALJ’s findings, but this documentation is from an April 29, 2019, visit to Owensboro
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Health Muhlenberg Community Family Medicine (see Tr. 675).
This document does note
Plaintiff’s complaints of low back pain and pain with flexion, extension, and lateral rotation, but
no limp when ambulating (Id.). The actual August 8, 2019, documentation states that Plaintiff
“exhibits decreased range of motion, tenderness, bony tenderness and pain” (Tr. 647). However,
in the review of symptoms, on the page the ALJ cited, it reads, “[Plaintiff] [d]enies problems with
ambulation, climbing, normal activities” (Tr. 646). This is precisely the proposition that the ALJ
discussed and why the ALJ cited to this specific document (Id.). Moreover, at no point in the
ALJ’s determination does the ALJ tie a lack of ambulation problems with a lack of pain. Instead,
the ALJ clearly noted that the previous documentation cited was for complaints and the extent of
Plaintiff’s pain, while the last sentence was discussing ambulation (see Tr. 19-20).
Plaintiff’s argument to this aspect attempts to create an issue where none is present.
Next, Plaintiff asserts that the ALJ acted as her own medical expert in this case and
substituted her own judgment in place of the medical opinions in the record, specifically in “a
subjective and misguided interpretation of the medical evidence” (DN 21, pp. 7-9). However,
there is a difference between an administrative law judge having the authority to make an RFC
determination based upon the medical evidence and an administrative law judge “substitut[ing] his
own medical judgment for that of a treating physician” to make independent medical findings.
See Rhodes v. Comm’r of Soc. Sec., 2019 U.S. Dist. LEXIS 193031, at *25 (W.D. Ky. Mar. 7,
2019) (quoting Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009)). Indeed,
“ALJs must not succumb to the temptation to play doctor[.]” Id. (quoting Rohan v. Chater, 98
F.3d 966, 970 (7th Cir. 1996). Looking to the medical evidence and the ALJ’s opinion, it is clear
that the ALJ in the present matter did not succumb to this temptation. Instead, the ALJ used her
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authority to consider and discuss the relevant medical evidence and reports throughout her analysis
and craft an RFC consistent with the evidence and opinions. Unlike the Sixth Circuit’s finding in
Boulis-Gasche v. Comm’r of Soc. Sec., 451 F. App’x 488 (6th Cir. 2011), which was cited by
Plaintiff (DN 21, p. 8), the ALJ’s determination was not “grounded in a myopic reading of the
record.” Boulis-Gasche, 451 F. App’x at 494. Instead, the determination is premised upon years
of medical documentation, examination results, Plaintiff’s subjective complaints, and medical
opinions (see Tr. 19-21). Moreover, at no point does the ALJ suggest, contrary to Plaintiff’s
assertions, that “any minor improvement in the claimant’s conditions is sufficient to defeat his
claim for disability.” As for Plaintiff’s claim that the ALJ “is overlooking the bulk of the medical
evidence of record” (DN 21, p. 7), Plaintiff cites to no documentation which the ALJ “overlooked.”
Thus, Plaintiff’s argument to this effect is unpersuasive.
Finally, Plaintiff takes issue with the ALJ’s summarization and discussion of Plaintiff’s
radiculopathy and neuropathy (DN 21, pp. 8-9). The paragraph reads as follows:
However, the claimant does appear to have had some recurrent
difficulty with radiculopathy and neuropathy in the bilateral upper
extremities. Electro diagnostic testing has previously yielded
results consistent with sensory neuropathy issues in both of the
claimant’s upper limbs. (Exhibit 1F/147). In addition, the
claimant was reported on April 29, 2019, to have tremor issues with
his right hand, and on February 14, 2019, he was reported during
physical therapy to be unable to reach overhead due to right shoulder
weakness. (Exhibits 7F/22; 9F/47). Be that as it may, his right
shoulder pain, which was noted to be related to his neck, was still
just characterized as mild on December 18, 2018. (Exhibit 9F/56).
Tremor issues have also not consistently been documented in the
clinical findings of record.
(Tr. 20). Plaintiff argues that this section cites one instance of “mild” pain to “defeat” all other
complaints of pain (DN 21, p. 9), but the portion above makes clear that is not the case. Other
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portions of the ALJ’s determination details Plaintiff’s subjective complaints of pain (Tr. 19-21),
and at no point in the entirety of the ALJ’s determination is it explicitly or implicitly stated that
this one complaint of pain was superior to all others. Additionally, Plaintiff is “puzzled” by the
three citations to tremors and right upper extremity weakness while an earlier document “negates”
these findings (DN 21, p. 9). But, again, this is not the case. The ALJ’s analysis considers the
complaints of Plaintiff’s weakness and pain when reaching overhead and accounted for this by
restricting Plaintiff’s RFC to “never reach overhead with the right upper extremity” (Tr. 18). This
determination is precisely what an ALJ is required to do when crafting an RFC under the
regulations. 20 C.F.R. §§ 404.1529, 404.1545(a), 404.1546(c).
As such, the ALJ’s determination utilizes the proper standards when evaluating the
documentation in the record and the medical opinions, properly considered Plaintiff’s subjective
complaints, and crafted an RFC that appropriately takes all this information into account.
Therefore, the ALJ’s opinion is supported by substantial evidence and comports with applicable
law. Plaintiff’s is awarded no relief under this challenge.
Challenge to “Erroneous Standards”
1. Arguments of the Parties
Plaintiff contends that the ALJ utilized “erroneous standards” throughout the decision,
which led to an improper finding of “not disabled” (DN 21, p. 6). First, Plaintiff recites the ALJ’s
language where she found “the weight of the objective medical evidence does not reasonably
substantiate a completely debilitating level of physical restriction in this case on a sustained basis”
(Id.) (quoting Tr. 19). Plaintiff argues that this “is not the standard by which social security
disability cases are decided” (Id.). Plaintiff also disputes the use of “intolerable problems” as a
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standard in assessing his impairments (Id.) (quoting Tr. 20). While Plaintiff argues that the use
of these “erroneous standards” is an error requiring reversal, Plaintiff alternatively notes that,
regardless of the standards, a GRID ruling would have required a finding of disability, if Plaintiff
was “restricted to work activities that would preclude any work above the sedentary level” (Id.).
Defendant disputes Plaintiff’s argument and argues that the ALJ’s determination utilizes
the applicable regulations and standards (DN 26, pp. 4-11). Beginning with the evaluation of
medical opinions, Defendant iterates that the new regulations are applicable and discusses how the
ALJ utilized the new regulations for determining the persuasiveness of the medical opinions (Id.).
Moreover, the ALJ considered the agency reviewing physicians’ opinions, as they are “considered
experts in the field of disability evaluation” (Id. at p. 7) (citing 20 C.F.R. § 404.1513a(b)(1)).
While the ALJ found their opinions to be persuasive, the ALJ also “reasonably expanded on the
limitations opined . . . to account for the totality of the evidence, including medical records from
after their file reviews” (Id. at p. 8) (citing Tr. 20, 7-76, 89-91). Thus, Defendant claims “the ALJ
subjected the assessment of the reviewing doctors to proper scrutiny” (Id. at p. 9). Additionally,
“[t]he ALJ was within her right to add greater limitations because the ALJ alone is responsible for
determining a Plaintiff’s residual functional capacity” (Id.). Therefore, Defendant argues that
“substantial evidence supports the ALJ’s determination . . .” (Id. at p. 11).
The standards and applicable law necessary to this matter have been thoroughly noted at
the beginning of the previous discussion section. Throughout the Court’s analysis above, the
Court has illustrated how the ALJ has utilized the proper standards in making determinations
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throughout the five-step sequential analysis, specifically as it relates to the assessment of Plaintiff’s
subjective complaints. Thus, Plaintiff’s arguments about any purported “erroneous standards”
are unavailing. No relief will be granted from these challenges.
As for the brief argument about a GRID ruling (see DN 21, p. 6), the Court is inclined to
consider this argument waived. It is well-established that “issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived.”
United States v. Layne, 192 F.3d 556, 566 (6th Cir.1999) (quoting McPherson v. Kelsey, 125 F.3d
989, 995-96 (6th Cir.1997)); see also Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir.1995)
(observing that “[w]e consider issues not fully developed and argued to be waived.”); Rice v.
Comm’r of Soc. Sec., 169 F. App’x 452, 453 (6th Cir. 2006). Plaintiff’s argument simply asserts
that a finding of disability would apply under the GRID rules, but Plaintiff cites no facts or law to
substantiate this claim (DN 21, p. 6). Thus, no relief stems from this argument.
Even if the Court does not consider Plaintiff’s GRID ruling argument to be waived, it would
still not provide relief. Plaintiff’s argument contains a significant presumption that is addressed
nowhere else in the Fact and Law Summary: “Rather, [Plaintiff] only needs to be restricted to work
activities that would preclude any work above the sedentary level” (Id.). As previously noted, the
ALJ found Plaintiff’s to have the RFC to perform a range of light work with some limitations
(Tr. 18). At no point in Plaintiff’s Fact and Law Summary does Plaintiff even begin to suggest
that the ALJ should have found a different RFC (see DN 21). As discussed above, the ALJ’s RFC
determination is supported by substantial evidence and comports with applicable law, which
undermines Plaintiff’s contentions even further. Moreover, the ALJ mentioned using the GRID
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as a framework for her decision-making (Tr. 21-22), which comports with applicable law. 3
Looking to GRID Rule 202, when presented with a claimant who is limited to light work, is an
individual closely approaching advanced age, and has at least the equivalent of a high school
education, the administrative law judge is directed towards a finding of “not disabled” regardless
of transferability of job skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.13-202.15. This is
precisely what the ALJ found when making her determination (Tr. 21-22). The ALJ, however,
noted that Plaintiff’s “ability to perform all or substantially all of the requirements of this level of
work has been impeded by additional limitations” and utilized testimony by the vocational expert
to make a determination, which is also consistent with the applicable law. Therefore, even if the
Court does not consider Plaintiff’s GRID ruling argument to be waived, the ALJ’s determination
is supported by substantial evidence and comports with applicable law.
As the Court noted previously, “[a]s long as substantial evidence supports the
Commissioner’s decision, we must defer to it, even if there is substantial evidence in the record
that would have supported an opposite conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004). Regardless of how this Court may view the evidence, it is not this
Court’s place to re-try or re-evaluate the findings of the ALJ. 42 U.S.C. § 405(g). Rather, this
When an administrative law judge’s findings concerning a claimant’s age, education, previous work experience,
and RFC coincide with all of the criteria of a particular GRID Rule within the medical-vocational guidelines, the
administrative law judge may rely on that GRID Rule to satisfy his burden. 20 C.F.R. §§ 404.1569, 416.969;
Grid Rule 200.00; Born v. Sec’y of Health & Hum. Servs., 923 F.2d 1168, 1174 (6th Cir. 1990); Moon v. Sullivan,
923 F.2d 1175, 1181 (6th Cir. 1990). However, if the administrative law judge’s findings do not coincide with
all the criteria, then the administrative law judge is limited to using the GRID Rule as a framework in the decisionmaking process and must make a non-guideline determination based on the testimony of a vocational expert. 20
C.F.R. §§ 404.1566(e), 416.966(e); Born, 923 F.2d at 1174; Varley v. Sec’y of Health & Hum. Servs., 820 F.2d
777, 779 (6th Cir. 1987); Kirk v. Sec’y of Health & Hum. Servs., 667 F.2d 524, 531, 535 (6th Cir. 1981), cert.
denied, 461 U.S. 957 (1983).
Case 4:20-cv-00189-HBB Document 27 Filed 05/06/22 Page 17 of 17 PageID #: 830
Court is only to find if substantial evidence exists to support the ALJ’s decision and if the ALJ
followed the applicable law. Id. After reviewing the record, the Court concludes that the ALJ’s
determination is supported by substantial evidence in the record and correctly followed the
applicable law. Therefore, Plaintiff is not entitled to relief with regard to his challenge.
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that judgment is GRANTED for the Commissioner.
May 6, 2022
Counsel of Record
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