Murphy v. Social Security Administration, Commissioner of

Filing 21

ORDER denying 14 Motion for Summary Judgment; granting 16 Motion for Summary Judgment.The Commissioners decision denying benefits is AFFIRMED. Signed by Magistrate Judge Susan K Lee on 5/18/2016. (SAC, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
JEFFERY C. MURPHY,

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

No. 1:15-cv-126-SKL

ORDER
Plaintiff Jeffery C. Murphy (“Plaintiff”) brought this action pursuant to 42 U.S.C. §
405(g) seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying his disability insurance benefits (“DIB”). Each party
has moved for summary judgment [Docs. 14 & 16] with supporting briefs [Docs. 15 & 17]. This
matter is now ripe. For the reasons stated below, Plaintiff’s motion for summary judgment [Doc.
14] will be DENIED; the Commissioner’s motion for summary judgment [Doc. 16] will be
GRANTED; and the decision of the Commissioner will be AFFIRMED.
I.

ADMINISTRATIVE PROCEEDINGS
Plaintiff filed his application for DIB on December 8, 2005, alleging disability beginning

September 30, 2003 (Transcript [Doc. 10] (“Tr.”) 842-44).1 Plaintiff’s claim was denied initially
and upon reconsideration at the agency level (Tr. 657-58, 659, 704-06, 708-09). After a hearing
was held, administrative law judge (“ALJ”) Robert L. Erwin found on February 20, 2008, that
Plaintiff was not under a disability as defined in the Social Security Act (“Act”) (Tr. 663-71).
Plaintiff requested that the Appeals Council review the unfavorable decision (Tr. 717). On May
11, 2010, the Appeals Council vacated the ALJ’s decision and remanded the case for further
1

Plaintiff reported he last worked on September 15, 2003, so for purposes of the December 23,
2013 opinion, the ALJ considered disability as of September 15, 2003 (Tr. 530).

consideration (Tr. 672-74). After additional hearings, ALJ Erwin issued a decision on August 2,
2011, finding Plaintiff was not disabled (Tr. 678-94). Plaintiff again sought review of the ALJ’s
decision by the Appeals Council (Tr. 799). On April 19, 2013, the Appeals Council vacated the
ALJ’s August 2, 2011 decision and remanded the case to a new ALJ for further consideration
(Tr. 699-702). ALJ Carey Jobe held a hearing on November 26, 2013, during which Plaintiff
was represented by an attorney (Tr. 552-79).2 ALJ Jobe issued a decision on December 23,
2013, in which he determined Plaintiff was not under a “disability” as defined in the Act (Tr.
530-45). Once again, Plaintiff timely requested that the Appeals Council review the ALJ’s
unfavorable decision (Tr. 1). On March 26, 2015, the Appeals Council denied Plaintiff’s request
for review, making the ALJ’s December 23, 2013 decision the final decision of the
Commissioner (Tr. 1-3). Plaintiff timely filed the instant action [Doc. 1].
II.

FACTUAL BACKGROUND
A. Education and Employment Background
Plaintiff was born in 1966 and was 42 years old on the date last insured, December 31,

2008 (Tr. 544, 842). Plaintiff has at least a high school education and is able to communicate in
English (Tr. 544, 556). Plaintiff’s past relevant work history includes a maintenance mechanic
and a water treatment plant operator (Tr. 572).
B. Medical Records
Plaintiff alleged disability due to cysts on his tailbone, chronic sinusitis, migraines, right
shoulder pain, right knee pain, and arthritis (Tr. 869). The administrative record contains
extensive medical records, primarily from the Department of Veterans Affairs (“VA”) medical
clinics dating back to 2002, which have been summarized by the parties and the ALJ. Only the

2

Plaintiff was also represented by counsel during the January 16, 2008 and July 6, 2011
hearings.
2

portions of Plaintiff’s medical records relevant to the parties’ arguments will be addressed within
the respective sections of the analysis below, but all relevant records have been reviewed.
C. Hearing Testimony
The Court has carefully reviewed the transcripts of the testimony at the hearings. While
it is not necessary to summarize the testimony herein, the testimony will be addressed as
appropriate within the respective sections of the Court’s analysis below.
III.

ELIGIBILITY AND THE ALJ’S FINDINGS
A.

Eligibility

“The Social Security Act defines a disability as the ‘inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.’” Schmiedebusch v. Comm’r of Soc. Sec., 536 F. App’x 637,
646 (6th Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)); see also Parks v. Soc. Sec. Admin., 413
F. App’x 856, 862 (6th Cir. 2011) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant is disabled
“only if his physical or mental impairment or impairments are of such severity that he is not only
unable to do his previous work, but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy.”
Parks, 413 F. App’x at 862 (quoting 42 U.S.C. § 423(d)(2)(A)).

The Social Security

Administration (“SSA”) determines eligibility for disability benefits by following a five-step
process. 20 C.F.R. § 404.1520(a)(4)(i-v). The five-step process provides:
1) If the claimant is doing substantial gainful activity, the claimant is
not disabled.
2) If the claimant does not have a severe medically determinable
physical or mental impairment—i.e., an impairment that
significantly limits his or her physical or mental ability to do basic
work activities—the claimant is not disabled.
3

3) If the claimant has a severe impairment(s) that meets or equals one
of the listings in Appendix 1 to Subpart P of the regulations and
meets the duration requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from
doing his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant
is not disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009). The claimant bears the
burden to show the extent of his impairments, but at step five, the Commissioner bears the
burden to show that, notwithstanding those impairments, there are jobs the claimant is capable of
performing. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010).
B.

The ALJ’s Findings

Plaintiff meets the insured status requirements through December 31, 2008 (Tr. 532).
The relevant period for consideration of whether Plaintiff was disabled is from September 15,
2003 through December 31, 2008 (Tr. 530). At step one of the sequential process, the ALJ
found Plaintiff had not engaged in substantial gainful activity since September 15, 2003, the
alleged onset date, through December 31, 2008, his date last insured (Tr. 532). At step two, the
ALJ found Plaintiff had the following severe impairments: degenerative disc disease of the
lumbar spine, degenerative joint disease of both shoulders, degenerative joint disease of the right
knee, a history of migraine headaches, a major depressive disorder, and a substance abuse
disorder (Tr. 532-33). The ALJ determined that Plaintiff had the non-severe impairments of
sinusitis, allergies, stomach problems, hypertension, and chronic idiopathic urticarial (Tr. 533,
536). At step three, the ALJ found Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 533-34). The ALJ found Plaintiff had the residual
4

functional capacity (“RFC”) to perform:
light work as defined in 20 CFR 404.1567(b) except that he
required a sit/stand option at about 45 to 60 minute intervals. He
had no limitations on the use of the hands for handling, fingering,
or feeling but he was limited to occasional overhead reaching with
both arms. He needed to avoid concentrated exposure to hazards
(heights, machinery, etc.). Mentally, he was limited to simple and
some detailed tasks (SVP 1-3), which involved only occasional
contact with the public and coworkers and infrequent work
changes.
(Tr. 535-44).3 At step four, the ALJ found Plaintiff was unable to perform his past relevant
work through the date last insured (Tr. 544). At step five, the ALJ noted that Plaintiff was born
in 1966 and was 42 years old on the date last insured, which is defined as a younger individual,
had at least a high school education, and was able to communicate in English (Tr. 544).
After considering Plaintiff’s age, education, RFC, and work experience in conjunction
with the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App’x 2 (“Grids”), and
considering the testimony of a vocational expert, the ALJ found there were jobs that existed in
significant numbers in the national economy that Plaintiff could perform (Tr. 544-45). These
findings led to the ALJ’s determination that Plaintiff was not under a disability as defined in the
Act at any time from September 15, 2003, through December 31, 2008, the date last insured (Tr.
545).
IV.

ANALYSIS
Plaintiff alleges there is not substantial evidence to support the ALJ’s finding that

Plaintiff was not disabled. More specifically, Plaintiff argues that the ALJ erred by failing to
properly weigh the alleged 100% disability determination by the VA, and thus the case must be

3

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighting up to 10 pounds” and “requires a good deal of walking or standing or . . .
sitting most of the time”. 20 C.F.R. §§ 404.1567(b).
5

remanded [Doc. 15 at Page ID # 1530-31]. Additionally, Plaintiff contends that the ALJ erred in
weighing two consultative exams, one physical and the other psychological, that were performed
in March 2011. Plaintiff argues that the ALJ improperly assigned “little weight” to the 2011
opinion of the consultative physical examiner, which found multiple limitations and would have
supported a determination of disability, because it occurred beyond Plaintiff’s date last insured,
while assigning “great weight” to 2011 opinions of the consultative psychological mental
examiner, which also occurred beyond Plaintiff’s date last insured, because it was consistent
with a previous consultative exam performed in 2006 [id. at Page ID # 1532].
Defendant counters that substantial evidence supports the ALJ’s evaluation of the opinion
evidence [Doc. 17 at Page ID # 1542]. Defendant argues that the ALJ did not ignore the
Plaintiff’s VA disability rating as the ALJ considered all of the VA medical records in
adjudicating Plaintiff’s claim [id. at Page ID # 1542-43]. Defendant contends that Plaintiff has
shown no harm from the ALJ’s consideration of the VA disability rating because the contents of
a 2006 VA award letter do not support Plaintiff’s claim of total disability [id. at Page ID # 1546].
Defendant further argues that the ALJ properly discounted a 2011 consultative physical
examination performed after Plaintiff’s date last insured as the limitations assessed were
inconsistent with the medical evidence and Plaintiff’s own testimony and activities during the
relevant period and thus there was no basis for relating the limitations back to 2008 [id. at Page
ID # 1547-48]. Finally, Defendant argues that the ALJ properly gave great weight to the 2011
consultative psychological examination because the findings were consistent with the 2006
consultative psychological examination performed prior to Plaintiff’s date last insured [id. at
Page ID # 1549-50].

6

A.

Standard of Review

A court must affirm the Commissioner’s decision unless it rests on an incorrect legal
standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (internal citations omitted). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”

McClanahan, 474 F.3d at 833 (internal citations omitted).

Furthermore, the

evidence must be “substantial” in light of the record as a whole, “tak[ing] into account whatever
in the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.
1984) (internal citations omitted). If there is substantial evidence to support the Commissioner’s
findings, they should be affirmed, even if the court might have decided facts differently, or if
substantial evidence would also have supported other findings. Smith v. Chater, 99 F.3d 780,
782 (6th Cir. 1996); Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The court may not
re-weigh evidence, resolve conflicts in evidence, or decide questions of credibility. Garner, 745
F.2d at 387. The substantial evidence standard allows considerable latitude to administrative
decision makers because it presupposes “there is a ‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” McClanahan, 474 F.3d at 833
(quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).
The court may consider any evidence in the record, regardless of whether it has been
cited by the ALJ. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court
may not, however, consider any evidence which was not before the ALJ for purposes of
substantial evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore,
the court is under no obligation to scour the record for errors not identified by the claimant,
Howington v. Astrue, No. 2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009)
(stating that assignments of error not made by claimant were waived), and arguments not raised
7

and supported in more than a perfunctory manner may be deemed waived, Woods v. Comm’r of
Soc. Sec., No. 1:08-CV-651, 2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory claims of
error without further argument or authority may be considered waived).
B.

Consideration of the VA’s Disability Determination

In his opinion, the ALJ stated that he considered Plaintiff’s allegation that he had been
granted 100% disability by the VA and cited Exhibit 11F/12 (Tr. 543). Exhibit 11F/12 is a June
20, 2007 treatment note from the Mountain Home VA Medical Center which states that Plaintiff
“[r]elates that he was approved for 100% disability which has allowed him to pay his bills and
feel financially secure” (Tr. 1192). The ALJ commented that the VA letter awarding 100%
disability was not contained in the administrative record, but “[r]egardless, [he was] not bound
by VA disability determinations or that of any other governmental agency” because “the VA
uses much different standards for their determinations” (Tr. 543).
Plaintiff argues that the VA determination supporting 100% disability was in the record
and that the ALJ overlooked it, which is reversible error [Doc. 15 at Page ID # 1530-31].
Plaintiff cites an August 27, 2006 VA decision letter and accompanying Ruling Decision dated
June 30, 2006 (collectively “August 2006 VA decision”) in support of his position that he was
awarded 100% permanent disability (Tr. 906-08). Defendant counters that the ALJ did not
ignore the alleged 100% disability rating and clearly considered it along with all of the VA
medical records in adjudicating Plaintiff’s claim [Doc. 17 at Page ID 1542-43]. Defendant also
argues that Plaintiff has shown no harm in the ALJ’s failure to reference or specifically discuss
the August 2006 VA decision because that decision did not support Plaintiff’s claims for total
disability under the SSA’s rules and regulations [id. at Page ID # 1546].

8

The August 2006 VA decision granted Plaintiff a temporary 100% disability
determination for a two-month period beginning August 16, 2005 “based on surgical or other
treatment necessitating convalescence for degenerative changes [in the] right knee,” and then a
10% disability determination from October 1, 2005, the date ending the period of convalescence,
“for leg flexion which is limited to 45 degrees” (Tr. 907-08). To be entitled to disability under
Title II of the Act, Plaintiff must establish a disabling impairment that lasted for twelve
consecutive months. 20 C.F.R. § 404.1505(a).
The issue of whether a claimant is disabled under the Act is reserved to the
Commissioner. 20 C.F.R. § 404.1527(d)(1); see also Social Security Ruling (“SSR”) 06-03p,
2006 WL 2329939, at * 3 (Aug. 9, 2006). The SSA’s regulations provide that:
[a] decision by . . . any other governmental agency about whether
you are disabled . . . is based on its rules and is not our decision
about whether you are disabled . . . . We must make a disability . .
. determination based on social security law. Therefore, a
determination made by another agency that you are disabled . . . is
not binding on us.
20 C.F.R. § 404.1504. The ALJ is required to consider all of the evidence in the administrative
record that has a bearing on the disability determination. See SSR 06-03p, 2006 WL 2329939, at
*6; see also 40 C.F.R. § 404.1512(b)(5). Thus, the ALJ must consider evidence of a disability
decision by another governmental agency, but it is not binding. See SSR 06-03p, 2006 WL
2329939, at *6. The SSA has explained that the ALJ “should explain the consideration given to
these decisions [of other governmental agencies] in the notice of decision for hearing cases.” Id.
at *7 (emphasis added).
The Court of Appeals for the Sixth Circuit (“Sixth Circuit”) has “held that a disability
rating from the Veterans Administration is entitled to consideration, but . . . [has] not specified
the weight such a determination should carry when determining social security disability
9

eligibility.” Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 510 (6th Cir. 2013) (finding that
when the ALJ stated that she was not bound by the VA’s decision of 100% total and permanent
disability but did consider it, the ALJ stated a proper understanding of the law); see also
LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 387 (6th Cir. 2013) (“This court has not set
forth a specific standard regarding the weight the Commissioner should afford a 100% disability
determination.”). Thus, the ALJ must consider the VA’s disability determination, but it is not
entitled to any particular weight.
Here the ALJ clearly stated that, while he was not bound by the VA’s disability decision,
he did consider Plaintiff’s allegations of a 100% VA disability determination. The ALJ then
noted that the administrative record did not contain an award letter of 100% disability by the VA.
As evidence of the alleged 100% permanent disability determination, Plaintiff refers only to the
August 2006 VA decision, but as previously explained, this supports a temporary and partial VA
disability rating. Neither party has cited in the record to a VA award letter supporting and
explaining a 100% permanent disability determination, and the Court need not hunt through the
voluminous record looking for one. See Emerson v. Novartis Pharm. Corp., 446 F. App’x 733,
736 (6th Cir. 2011) (holding that “[j]udges are not like pigs, hunting for truffles that might be
buried in the record.”) (internal citation, quotation marks, and alteration omitted); InterRoyal
Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989) (noting that a district court is neither
required to speculate on which portion of the record a party relies, nor is it obligated to “wade
through” the record for specific facts). Even after Defendant pointed out that the August 2006
decision did not reflect a 100% permanent disability determination by the VA, Plaintiff has not
cited in the administrative record to any VA award letter or decision finding Plaintiff 100%
permanently disabled during the relevant time period.

10

Plaintiff also states in his brief that the record “evidences the Plaintiff’s service connected
80% impairment rating [Doc. 15 at Page ID #1524-25], and cites a page in an August 30, 2005
treatment note (Tr. 1023). Plaintiff does not cite to any VA disability determination letter or any
evidence in the record that provides an explanation for the VA’s disability rating in this
treatment note, and the treatment note does not explain the basis for the determination. When an
ALJ makes a broad statement that he considered another agency’s disability determination in
accordance with the SSA rules, courts have generally “held that when the other agency’s
decision presents only bare conclusions or approval of disability benefits, without any medical
opinions or underlying reasons or standards supporting such a finding, an ALJ’s failure to
consider that decision is harmless.” Vanderpool v. Comm’r of Soc. Sec., No. 12-13727, 2013
WL 5450276, at *1 (E.D. Mich. Sept. 30, 2013); see also Stokes v. Comm’r of Soc. Sec., No.
1:13-cv-487, 2015 WL 803087, at *8 n.4 (W.D. Mich. Feb. 25, 2015) (“A VA disability decision
which cites no supporting medical evidence and is “essentially a form opinion, unaccompanied
by any written report’ provides the ALJ with very little to ‘consider.’ Because the VA gave a
bare statement of a conclusion . . ., it would have been, at most, harmless error on the present
record if the ALJ’s opinion had not mentioned the VA’s decision.”). As previously discussed,
the Court is not required to hunt through the approximately 1,400 page administrative record for
an explanation. Plaintiff has merely cited to conclusory statements of the VA’s 100% disability
rating unaccompanied by medical evidence for the VA’s determination.
To the extent that Plaintiff is arguing the ALJ was required specifically to discuss his
consideration of a temporary, two-month 100% disability determination and then a 10%
disability determination and failure to do so amounts to error, Plaintiff has not cited any authority
supporting such a stringent position. In fact, the cases cited by Plaintiff address the SSA’s
consideration of, or failure to consider, the VA’s decision to award a claimant 100% permanent
11

disability rating and a State’s determination that a claimant was disabled. See LaRiccia, 549 F.
App’x at 387-88 (involving a disability rating from the VA of 100% based on all of claimant’s
service-connected conditions); King v. Comm’r of Soc. Sec., 779 F. Supp. 2d 721, 725-26 (E.D.
Mich. 2011) (involving a determination by the VA that the claimant had a 100% permanent
disability, meaning the plaintiff was totally and permanently disabled, and remanding because
the ALJ did not explain whether she accorded it any weight and if not why); Lowery v.
Commissioner of Soc. Sec., 886 F. Supp. 2d 700, 717 (S.D. Ohio 2012) (involving the VA’s
determination that the plaintiff suffered from a brain injury which was 50% disabling and that
the plaintiff was unable to work based on his service-connected disabilities and therefore
granting him entitlement to the 100% disability rate); Dellerman v. Comm’r of Soc. Sec., No.
2:13-CV-563, 2014 WL 3734393, at *5-6 (S.D. Ohio July 28, 2014) (involving a 100% serviceconnected disability from the VA and remanding because no indication that the ALJ considered
the evidence); McPhee v. Comm’r of Soc. Sec., No. 12-cv-13931, 2013 WL 3224420, at *13-14
(E.D. Mich. June 25, 2013) (remanding so that the ALJ could obtain if necessary additional
records of the state’s determination that plaintiff was unable to work and approval of disability
benefits and so that the ALJ could explain the consideration he gives the state’s disability
determination in adjudicating whether plaintiff is disabled under the Act). A finding of partial
disability by the VA is not binding on the Commissioner nor does it show total disability. See
Cordova v. Shalala, No. 93-1268, 1994 WL 74032, at *1 n.3 (10th Cir. Mar. 10, 1994).
Further, as Defendant correctly argues, Plaintiff has not identified any harm that resulted
from any error in the ALJ’s consideration of the VA disability rating in that the August 2006 VA
decision would not support his claim of total disability under the Act. Generally “an agency’s
violation of its procedural rules will not result in reversible error absent a showing that the
claimant has been prejudiced on the merits or deprived of substantial rights because of the
12

agency’s procedural lapses.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547-48 (6th Cir.
2004) (using harmless error analysis when ALJ made error of law by not following the SSA’s
regulations pursuant to 20 C.F.R. § 1527(d)(2) (now (c)(2)) concerning the weight to be given to
a treating physician’s opinion) (internal quotation marks, emphasis, and citation omitted)); see
also Rabbers v. Comm’r of Soc. Sec., 582 F.3d at 654-55 (finding that remand not warranted if a
claimant has not “been prejudiced on the merits or deprived of substantial rights because of the
agency’s procedural lapses”).
Accordingly, I FIND that, based on the ALJ’s December 23, 2013 opinion, the ALJ
properly considered the VA records, which included the August 2006 VA decision of temporary
and partial disability and the August 2005 treatment note, and that the ALJ focused his
discussion on the VA’s alleged award of 100% disability which could possibly have impacted
the ALJ’s determination (Tr. 535-40). Neither the temporary disability determination nor the
10% disability determination in the August 2006 VA decision could establish that Plaintiff was
disabled for a 12-month period and unable to perform any work-related activities which Plaintiff
must prove in order to be found disabled under the SSA regulations. Additionally, a bare bones,
unsupported statement in a treatment note of an 80% service-connected disability without an

13

explanation of, or citation to, the medical evidence supporting the VA’s determination would not
support the ALJ’s determination of disability under the Act.4
I further FIND that any error in the ALJ’s consideration of the VA disability rating,
including any error resulting from the ALJ’s failure to mention specifically the August 2006 VA
decision in his opinion, was at most harmless in light of the fact that the VA’s decision of partial
or temporary disability could not have provided substantial evidence to support a decision to
render Plaintiff disabled pursuant to the SSA regulations and that the parties have not cited to
any evidence in the record explaining any decision by the VA to award Plaintiff a 100%
disability rating.
C.

Weighing Medical Opinions

At the request of Defendant, Plaintiff underwent two consultative exams in March 2011,
over two years after Plaintiff’s date last insured.

Plaintiff argues that the ALJ erred by

inconsistently relying on one consultative examination that occurred after his date last insured
while discounting the other [Doc. 15 at Page ID # 1532-33]. Plaintiff contends that the ALJ
disregarded the consultative physical exam that supported a finding of disability on the basis that
the exam was performed after the date last insured [id. at Page ID # 1532]. Defendant counters

4

Plaintiff generally “bears the ultimate burden to prove by sufficient evidence that she [or he] is
entitled to disability benefits.” Trandafir v. Comm'r of Soc. Sec., 58 F. App’x 113, 115 (6th Cir.
2003) (citing 20 C.F.R. § 404.1512(a)). Plaintiff was represented by counsel during the January
16, 2008, July 6, 2011, and November 26, 2013 hearings before the ALJs. Therefore, the ALJ
did not have a “special, heightened duty” to develop the record. See Lambdin v. Comm'r of Soc.
Sec., 62 F. App’x 623, 625 (6th Cir. 2003) (citing Lashley v. Sec'y of Health & Human Servs.,
708 F.2d 1048, 1051–52 (6th Cir. 1983)). Plaintiff's counsel had adequate opportunity to
question Plaintiff and provide the VA disability rating determination along with the VA’s
explanation of the medical evidence supporting the determination. The ALJ considered all of the
objective medical evidence in the administrative record and applied the SSA’s rules and
regulations for determining disability which are different and more stringent than the VA’s
standards for determining disability. Stokes, 2015 WL 803087, at *8 n.4.
14

that the ALJ had no reason to discount the 2011 consultative psychological evaluation since it
was consistent with the evidence obtained during the relevant period unlike the 2011 consultative
psychological examination [Doc. 17 at Page ID # 1550].
In the 2011 consultative psychological exam, Brian R. Humphreys, Psy.D., opined that
Plaintiff had no more than mild mental limitations and was able to perform simple and some
detailed tasks (Tr. 543, ex. 13F, 1235).5 The ALJ assigned the 2011 consultative psychological
exam “great weight” explaining that it was consistent with the clinical interview data and
diagnosis of a consultative examination performed in 2006 (Tr. 543). In April 2006, Martha
Wike, Ph.D., conducted a psychological evaluation and opined that Plaintiff had mild
impairments in his ability to understand and remember instructions, sustain attention and
concentration, interact with other people, and adapt to change (Tr. 1093). The ALJ found
through December 31, 2008, his date last insured, Plaintiff could perform simple and some
detailed tasks, have occasional contact with the public and co-workers, and adapt to infrequent
work changes and that he was not otherwise limited to perform the mental functions required of
work (Tr. 543).
Dr. Wesley Heath Giles performed a consultative physical examination in March 2011.
Dr. Giles noted that Plaintiff used a cane, limped favoring his right leg, and his gait was
abnormal (Tr. 1242). He wore a brace on his right wrist, his back, and his right knee (Tr. 1242).
5

Mr. Humphreys found in his mental medical assessment that:
The claimant does not appear to be significantly limited in his
abilities to understand, remember, and adapt adequately in a job
setting. He might be as much as mildly limited in his ability to
concentrate and persist adequately when working with complex
information, but not with simple information. He also might be
mildly limited in his ability to interact appropriately with others
given his chronic anger.

(Tr. 1235).
15

He had difficulty with heel-toe walking, could only perform a partial knee bend, and had
decreased balance (Tr. 1242). He had positive straight leg raises bilaterally and a limited range
of motion in his lumbar spine, right shoulder, and right knee (Tr. 1242). He had full strength in
his upper extremities and good grip strength (Tr. 1242). Dr. Giles opined that Plaintiff could
stand and walk for four hours out of an eight-hour workday with unlimited sitting and he could
frequently lift and carry up to 20 pounds (Tr. 1243, 1246). He further opined that Plaintiff could
occasionally reach overhead, climb stairs and ramps, and balance but never stoop, kneel, crouch,
crawl, or climb ladders or scaffolds (Tr. 1243, 1247-48).
The ALJ gave little weight to the 2011 consultative examination of Dr. Giles finding
there was no basis for relating it back to 2008 (Tr. 543). Plaintiff claims that these limitations
were present prior to his date last insured. Plaintiff testified that he used a cane at times, could
stand in one spot comfortably for ten minutes, could sit for twenty or thirty minutes at a time,
and could only walk for 150 yards at a time before experiencing pain (Tr. 563-64, 630). While
Plaintiff testified to significant continuous limitations since his alleged onset date, the ALJ found
Plaintiff’s testimony not credible based on inconsistencies with other evidence in the record (Tr.

16

541). Plaintiff is not disputing the ALJ’s credibility determination.6 Although Plaintiff testified
that he could only stand and walk for a few minutes and over a very limited distance, a January
2007 treatment note indicated that Plaintiff was able to walk one to three miles (Tr. 542, 563-64,
630, 1138, 1146). Plaintiff testified in 2013 that could not sit long enough to watch a movie, but
in 2008 he testified that he spent most of the day watching movies on television (Tr. 572, 630).
Plaintiff testified in 2008 that he did not have grip strength, but the medical records do not
document clinical or objective findings supporting a loss of grip strength (Tr. 537, 567, 632) and
even Dr. Giles noted during his 2011 evaluation that Plaintiff had good grip strength (Tr. 1242).
Additionally, the ALJ found that Plaintiff’s activities both before and after his date last
insured do not support a disability finding (Tr. 541). The administrative records documented
Plaintiff’s activities included cutting wood, fishing, driving long distances, riding a motorcycle,
umpiring softball games, babysitting his grandson, hunting, weed eating, and riding a
lawnmower (Tr. 542, 571, 624, 627-28, 1206-10, 1092, 1211, 1222, 1268, 1282, 1433, 1435).

6

Although the ALJ’s “credibility” determination is not at issue in this matter, the SSA recently
published SSR 16-3p, Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in
Disability Claims, effective March 16, 2016, which supersedes SSR 96-7p, Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility
of an Individual’s Statements. SSR 16-3p eliminates use of the term “credibility” from SSA
policy, as the SSA’s regulations do not use this term, and clarifies that subjective symptom
evaluation is not an examination of a claimant’s character. See SSR 16-3p, 2016 WL 1119029,
at *1 (Mar. 16, 2016). SSR 16-3p took effect on March 16, 2016, more than two years after the
ALJ issued his decision on December 23, 2013, and therefore is not applicable to the ALJ’s
decision in this case. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 209 (1988)
(“Retroactivity is not favored in the law. Thus congressional enactments and administrative
rules will not be construed to have retroactive effect unless their language requires this result.”);
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541-42 (6th Cir. 2007) (“We are not aware of any
constitutional or statutory requirement that the Administration apply its [newly effective] policy
interpretation rulings to appeals then-pending in federal courts, absent, of course, ex post facto or
due process concerns not present here.”); Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th
Cir. 2006) (“The Act does not generally give the SSA the power to promulgate retroactive
regulations.” (citing 42 U.S.C. § 405(a))). The text of SSR 16-3p does not indicate the SSA’s
intent to apply it retroactively.
17

These activities are inconsistent with Plaintiff’s testimony and Dr. Giles’s restrictions on
standing, walking, kneeling, crouching, crawling, and climbing ladders. Plaintiff also reported
that he had gone to Florida to help with hurricane recovery in 2004, gone bear hunting in 2004
and even deer hunting as late as 2008, gone swimming in 2005, and had climbed a ladder in 2006
(Tr. 571, 624, 938, 1061, 1134).
The ALJ also found that medical records prior to Plaintiff’s date last insured showed no
such disabling limitations as opined by Plaintiff or Dr. Giles. The medical evidence consisted
primarily of records from the VA of Plaintiff’s treatment for service-connected migraines and
injuries to the right shoulder, back, and right knee (Tr. 536). The records support that Plaintiff
successfully worked for many years after his military service with the alleged impairments (Tr.
854-55, 878). When he quit working in September 2003, the VA records indicate that Plaintiff
reported he became angry and quit his job of 17 years and then tried to return to work (Tr. 541,
946). In January 2004, Plaintiff indicated that he had angrily resigned from his job (Tr. 946-47).
In April 2006, he reported to consultative examiner Dr. Wike that he left his job due to multiple
medical complaints, and in his DIB application, he claimed he stopped working because of
medical conditions that made him unable to perform the job (Tr. 541, 869, 1090). In November
2010, Plaintiff reported that he was unemployed because of headaches although he reported
having only one headache a month and less than half of them were “prostrating” (Tr. 541, 125961). See Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990)
(considering the fact that the plaintiff continued to work for two years after his accident and that
the objective medical evidence did not support the plaintiff’s allegations that his condition
worsened during that two-year period).
Further, upon review of the medical records which are described in the ALJ’s opinion,
the records support only mild limitations and are not consistent with the disabling limitations that
18

Plaintiff believes should be found. The treatment records do not show that Plaintiff’s shoulder
impairment significantly deteriorated during the relevant period. For example, x-rays in July
2003 were unchanged from May 2002; x-rays in January 2004 showed no abnormalities; x-rays
in early January 2007 showed only very mild degenerative changes in Plaintiff’s left shoulder;
and an MRI in July 2007 showed no changes from 2004 (Tr. 536-37, 972-74, 1143, 1202-03).
Physical examinations generally documented a decreased range of motion so the ALJ accounted
for this by limiting Plaintiff to lifting and carrying no more than 20 pounds and only occasionally
reaching overhead (Tr. 535, 537).
Similarly, treatment notes during the relevant period regarding Plaintiff’s back and right
knee do not support Plaintiff’s alleged disability (Tr. 536, 538). During the relevant period, xrays of Plaintiff’s lumbar spine showed only mild degenerative changes and some limitations to
the range of motion in his lumbar spine (Tr. 536, 538, 973-74, 942, 935-37, 1153). X-rays of
Plaintiff’s right knee were unremarkable in October 2003 (Tr. 537, 973). In June 2005, Plaintiff
reportedly injured his knee while walking down a riverbank to go swimming, and an earlier MRI
showed a partial tear of the medial meniscus (Tr. 1060-61, 1076). In August 2005, Plaintiff had
a diagnostic arthroscopy of his right knee, and by the end of August 2005, Plaintiff had a normal
range of motion, no swelling or edema, normal motor strength in all extremities, and a normal
gait (Tr. 1037-42, 1024-26).
In December 2005, Plaintiff wore a knee brace and reported occasionally using a cane
(Tr. 935). He had a slight antalgic gait with mild swelling of the right knee and mild discomfort
with range of motion testing of the lumbar spine (Tr. 538, 935-36). He had no limitation in
motion in his right knee and no weakness, spasm, or tenderness in his back (Tr. 936). X-rays
showed mild degenerative changes in his lumbar spine and a normal right knee (Tr. 538, 93637). Plaintiff then fell from a ladder and aggravated his knee in October 2006 (Tr. 1134).
19

Subsequent x-rays of his right knee were negative, and x-rays of the lumbar spine showed only
mild degenerative changes (Tr. 536, 537-538, 1142, 1153). Upon examination, Plaintiff had a
normal gait, no muscle spasm, no muscle atrophy, no tenderness to palpation, and no guarding or
pain with motion (Tr. 536, 1127, 1146-47). An MRI in July 2007 showed some improvement in
Plaintiff’s right knee as the right meniscus tear was less prominent than in prior scans (Tr. 538,
1202). To the extent that he found Plaintiff’s complaints of disabling pain credible, the ALJ
accounted for them by limiting Plaintiff to lifting and carrying no more than 20 pounds and
allowing a sit/stand option at about 45 to 60 minute intervals (Tr. 536, 538).
Further, the consultative physical examination performed by Dr. David McConnell in
April 2006 did not support Plaintiff’s alleged disabling limitations. He noted that Plaintiff wore
a knee splint and brace, was able to walk without assistance, and limped to the right (Tr. 1095,
1097). Plaintiff demonstrated full range of motion without pain in his ankles, left knee, hips,
thoracic spine, elbows, writs, and left shoulder, had good motor strength in both upper
extremities, showed some reduced range of motion of the lumbar spine, demonstrated no
evidence of sensory or motor deficits of the lower extremities, and had full extension and full
flexion of the right knee (Tr. 1097-98). An x-ray of the right knee was described as normal, and
an x-ray of the right shoulder showed the surgical removal of the distal one-third of the right
clavicle but no evidence of osteoarthritic changes (Tr. 1098).

Dr. McConnell opined that

Plaintiff could lift and/or carry 45 pounds occasionally, lift and/or carry 40 pounds frequently,
and stand, walk, and/or sit with normal breaks for a total of at least seven hours in an 8-hour day
(Tr. 538, 1099). These limitations were actually less restrictive than those assigned by the ALJ
in the RFC.
Although medical sources opine on a claimant’s RFC, ultimately it is the ALJ’s
responsibility to determine the RFC. See Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 578
20

(6th Cir. 2009); see also 20 C.F.R. § 404.1527(d)(2) & § 404.1546(c).

Other than the

inconsistencies in the weight applied to the opinions of the 2011 consultative examiners, Plaintiff
does not contend that the ALJ improperly weighed the opinion testimony.7 It is the function of
the ALJ to resolve the conflicts between the medical opinions. See Justice v. Comm’r of Soc.
Sec., 515 F. App’x 583, 588 (6th Cir. 2013) (“In a battle of the experts, the agency decides who
wins. The fact that [claimant] now disagrees with the ALJ’s decision does not mean that the
decision is unsupported by substantial evidence.”).
The Court does not agree with Plaintiff’s assertions that Dr. Giles’s 2011 examination
and opinions relate back to Plaintiff’s condition prior to the expiration of his dated last insured
on December 31, 2008. “In order to establish entitlement to disability insurance benefits, an
individual must establish that he became ‘disabled’ prior to the expiration of his insured status.”
Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990) (citing to 42 U.S.C. § 423(a) and (c) and
Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988)). “Evidence of disability obtained after the
expiration of insured status is generally of little probative value.” Strong v. Soc. Sec. Admin., 88
F. App’x 841, 845 (6th Cir. 2004); May v. Astrue, No. 4:10CV1533, 2011 WL 3490186, at *5
(N.D. Ohio June 1, 2011). “Medical evidence dated after a claimant's expiration of insured
status is only relevant to a disability determination where the evidence ‘relates back’ to the
claimant's limitations prior to the date last insured.” May, 2011 WL 3490186 at *5; see also
Wirth v. Comm'r of Soc. Sec., 87 F. App'x 478, 480 (6th Cir. 2003) (“Post-expiration evidence
must relate back to the claimant's condition prior to the expiration of her date last insured.”).

7

Plaintiff has not challenged the ALJ’s determination that Plaintiff’s allegations of his disabling
pain were not supported by the objective evidence and thus Plaintiff’s testimony of his disabling
symptoms was not entirely credible (Tr. 541). The ALJ’s credibility analysis, however, is
“inherently intertwined” with the RFC assessment. See Poppa v. Astrue, 569 F.3d 1167, 1171
(10th Cir. 2009) (“Since the purpose of the credibility evaluation is to help the ALJ assess a
claimant’s RFC, the ALJ’s credibility and RFC determinations are inherently intertwined.”).
21

“The related back evidence is relevant only if it is reflective of a claimant's limitations prior to
the date last insured, rather than merely his impairments or condition prior to this date.” May,
2011 WL 3490186, at *5. As discussed above, I FIND that substantial evidence in the record
prior to Plaintiff’s date last insured supports the ALJ’s determination that the 2011 consultative
physical examination was inconsistent with evidence in the record and thus would not relate back
to 2008.

Accordingly, I CONCLUDE the ALJ properly discounted the 2011 physical

consultative opinion as being beyond the date last insured.
V.

CONCLUSION
Upon careful review of the administrative record and the parties’ arguments and for the

foregoing reasons,
1) Plaintiff’s motion for summary judgment [Doc. 14] is DENIED;
2) The Commissioner’s motion for summary judgment [Doc. 16] is GRANTED;
and
3) The Commissioner’s decision denying benefits is AFFIRMED.
SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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