Adkins v. Commissioner of Social Security (JRG2)

Filing 15

MEMORANDUM AND ORDER denying 10 Motion for Summary Judgment; granting 13 Motion for Summary Judgment. Signed by Magistrate Judge Susan K Lee on 7/23/2018. (BDG, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
RONALD D. ADKINS,

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

No. 1:16-cv-465-SKL

MEMORANDUM AND ORDER
Plaintiff Ronald D. Adkins (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c) seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying him supplemental security income (“SSI”). Each party
has moved for judgment [Docs. 10 & 13] and filed supporting briefs [Docs. 12 & 14]. This matter
is now ripe. For the reasons stated below, (1) Plaintiff’s motion for judgment on the administrative
record [Doc. 10] will be DENIED; (2) the Commissioner’s motion for summary judgment [Doc.
13] will be GRANTED; and the decision of the Commissioner will be AFFIRMED.
I.

ADMINISTRATIVE PROCEEDINGS
As reflected in the transcript of the administrative proceedings [Doc. 5 (“Tr.”)], Plaintiff

filed his application for SSI on February 8, 2013, alleging disability beginning May 24, 2012 (Tr.
11, 132). Plaintiff’s claim was denied initially and on reconsideration at the agency level. After
a hearing was held on August 19, 2015, the administrative law judge (“ALJ”) found on September
17, 2015, that Plaintiff was not under a disability as defined in the Social Security Act (Tr. 11-19).
The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Commissioner (Tr. 1-4). Plaintiff timely filed the instant action [Doc. 1].

II.

FACTUAL BACKGROUND
A.

Education and Employment Background

Plaintiff was born November 16, 1957 (Tr. 27). Plaintiff has a seventh grade education
and is able to communicate in English (Tr. 28). Plaintiff has past relevant work as a general laborer
(Tr. 18, 36, 165).
B.

Medical Records

In his Disability Report, Plaintiff alleged disability due to “schizophrenia/right side
numb/mental depression/nerves” and “hbp” or high blood pressure (Tr. 183). The ALJ also noted
Plaintiff alleged lower back and right shoulder pain (Tr. 14). Plaintiff [Doc. 12 at Page ID # 50204] and the ALJ (Tr. 13-14, 16-18) each set forth a detailed, factual recitation with regard to
Plaintiff’s medical record, vocational record, and the hearing testimony. Defendant generally
adopts the statement of facts set forth by the ALJ, but includes citation to the record throughout
her argument [Doc. 14 at Page ID # 515, 517-30]. While there is no need to summarize the medical
records herein, the relevant records have been reviewed.
C.

Hearing Testimony

At the hearing before the ALJ, Plaintiff and a vocational expert (“VE”) testified. The
transcript of the testimony at the hearing has been reviewed (Tr. 24-53).

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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 (the “SSA” or the
“Agency”) 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) 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.

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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) (citations omitted). 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)
(citations omitted).
B.

The ALJ’s Findings

At step one of the sequential process, the ALJ found Plaintiff had not engaged in substantial
gainful activity since the application date, February 8, 20131 (Tr. 13). At step two, the ALJ found
Plaintiff had the following severe impairments: mood disorder; rule out borderline intellectual
functioning; adult anti-social behavior; and polysubstance abuse (Tr. 13). The ALJ found that
Plaintiff’s high blood pressure and resulting headaches were nonsevere because they could be
controlled with medication (Tr. 13-14). The ALJ also noted Plaintiff alleged lower back pain and
shoulder pain, but found these complaints were not supported by any appropriate imaging, and
therefore did not “amount to a medically determinable impairment.” (Tr. 14). 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. 14).

1

SSI applicants such as Plaintiff are not entitled to benefits until “the month following the month”
that the application is filed, regardless of the date of alleged disability onset. 20 C.F.R. § 416.335.
4

Next, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform a
full range of work at all exertional levels, with the following non-exertional limitations: “he can
perform simple and low-level detailed work; he can occasionally interact with the general public,
co-workers, and supervisors; and he can adapt to infrequent changes at work (which is
approximately 50% of the work process).” (Tr. 15-16). At step four, the ALJ found Plaintiff was
capable of performing past relevant work as a general laborer, at the medium exertional level with
a specific vocational preparation (“SVP”) rating of 2, which constitutes unskilled work2 (Tr. 1819). These findings led to the ALJ’s determination that Plaintiff was not under a disability as
defined in the Act from the date the application was filed through the date of the ALJ’s decision
(Tr. 19).
IV.

ANALYSIS
Plaintiff asserts this matter should be reversed and benefits awarded under sentence four

for several reasons: (1) The “ALJ committed errors by failing to include posttraumatic stress
disorder, psychotic disorder, sciatica, right shoulder pain and headaches as severe impairments.”
(2) The “ALJ committed errors by finding that [Plaintiff] has the residual functional capacity to
perform a full range of work at all exertional levels.” (3) The “ALJ committed errors by finding
that [Plaintiff] is capable of performing past relevant work as a general laborer.” (4) The ALJ
erred by failing to find Plaintiff was capable of, at most, light work, which given Plaintiff’s age,
education, and past work experience, would have required a finding of disabled based on the

2

The ALJ described SVP 2 rated work as “semi-skilled” (Tr. 18); however, the SSA considers
jobs rated at SVP 1 or 2 to be unskilled. See Social Security Ruling (“SSR”) 00-4P, 2000 WL
1898704 (Dec. 4, 2000) (“Using the skill level definitions in 20 CFR 404.1568 and 416.968,
unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4;
and skilled work corresponds to an SVP of 5-9 in the DOT.”).
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Medical-Vocational Guidelines [Doc. 12 at Page ID # 504-05].

Moreover, although not

specifically identified as an issue for the Court, Plaintiff repeatedly challenges the ALJ’s
assessment of Plaintiff’s “credibility” [see Doc. 12 at Page ID # 507 (“Respectfully, the ALJ
applied incorrect legal standards and did not follow SSA regulations in assessing the credibility of
Mr. Adkins.”)].
The Court will first address the credibility assessment. The Court will then address
Plaintiff’s arguments concerning the impairments the ALJ found to be non-severe. The remaining
issues are all essentially an attack of the ALJ’s formulation of Plaintiff’s physical RFC.3
Accordingly, the last issue the Court will consider is whether Plaintiff’s physical RFC is supported
by substantial evidence in the record.
A.

Standard of Review

The Social Security Act authorizes “two types of remand: (1) a post-judgment remand in
conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner]
(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material
evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six
remand).” Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citing

3

The ALJ found Plaintiff was capable of performing all levels of exertional work (with certain
non-exertional limitations, the sufficiency of which Plaintiff does not challenge). Plaintiff’s past
relevant work was at the medium exertional level; accordingly, if the physical RFC is supported
by substantial evidence, it follows that Plaintiff is capable of medium exertional work and therefore
capable of performing the physical requirements of his past work. Moreover, the VE testified that,
given Plaintiff’s RFC, he was capable of performing his past work. “The regulations permit an
ALJ to use the services of a vocational expert at step four to determine whether a claimant can do
his past relevant work, given his RFC.” Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429
(6th Cir. 2007) (citation omitted). The Court also notes the burden rests with Plaintiff to show he
is unable to return to his former type of work. See Studaway v. Sec’y of Health & Human Servs.,
815 F.2d 1074, 1076 (6th Cir. 1987) (citations omitted).
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42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter, upon
the pleadings and transcript of the record, a judgment affirming, denying, or reversing the decision
of the [Commissioner], with or without remanding the cause for a hearing.” 42 U.S.C. § 405(g).
Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is reversal and
a sentence-four remand for further consideration.” Morgan v. Astrue, No. 10-207, 2011 WL
2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).
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) (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 (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) (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)).

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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 that 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 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.

The ALJ’s Credibility Assessment

Plaintiff argues the ALJ erred in discounting his credibility because, according to Plaintiff,
his “testimony was entirely consistent” with the objective medical evidence of record. Plaintiff
also argues the ALJ improperly weighed Plaintiff’s subjective complaints concerning his pain
[Doc. 12 at Page ID # 507-08].
“[A]n ALJ’s findings based on the credibility of the applicant are to be accorded great
weight and deference, particularly since an ALJ is charged with the duty of observing a witness’s
demeanor and credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)
(citation omitted). But credibility assessments are not insulated from judicial review. Despite the
deference that is due, such a determination must nevertheless be supported by substantial evidence.
Id. An ALJ’s credibility determination must contain “specific reasons . . . supported by the
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evidence in the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” SSR 96-7p, 1996 WL 374186, at *2.4 “It is not sufficient to make a
conclusory statement ‘the individual’s allegations have been considered’ or that ‘the allegations
are (or are not) credible.’” Id. The ALJ need not, however, specifically address every factor listed
in SSR 96-7p when making a credibility determination. O’Mary v. Colvin, No. 3:13-CV-458TAV-CCS, 2014 WL 4348183, at *12 (E.D. Tenn., Sept. 2, 2014) (citation omitted).
Where an ALJ’s credibility assessment is fully explained and not at odds with
uncontradicted evidence in the record, it is entitled to great weight. See King v. Heckler, 742 F.2d
968, 974-75 (6th Cir. 1984) (noting the rule that an ALJ’s credibility assessment is entitled to
“great weight,” but “declin[ing] to give substantial deference to the ALJ’s unexplained credibility
finding” and holding it was error to reject uncontradicted medical evidence); see also Ulman v.
Comm’r of Soc. Admin., 693 F.3d 709, 714 (6th Cir. 2012) (“As long as the ALJ cite[s] substantial,
legitimate evidence to support his factual conclusions, we are not to second-guess.”); White v.

4

The SSA published SSR 16-3p, Policy Interpretation Ruling Titles II and XVI: Evaluation of
Symptoms in Disability Claims, which supersedes and rescinds 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 it 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 in March 2016, several months after the ALJ issued his decision
on September 17, 2015. SSR 16-3p instructs ALJs in accordance with the applicable regulations
to consider all of the evidence in the record in evaluating the intensity and persistence of symptoms
after finding the claimant has a medically determinable impairment, which is exactly what the ALJ
has done in this matter, so it is not necessary to determine whether SSR 16-3p applies retroactively.
See Dooley v. Comm’r of Soc. Sec., No. 16-5146, 2016 WL 4046777, at *5 n.1 (6th Cir. July 28,
2016). As the record in this case and much of the existing case law refers to “credibility”
evaluations, this memorandum will occasionally refer to the ALJ’s analysis using the same term.
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Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009) (citation omitted) (concluding the ALJ
was entitled to “rely on her own reasonable assessment of the record over the claimant’s personal
testimony”); Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994) (citation omitted) (stating the
ALJ’s credibility assessment is entitled to “substantial deference”). Substantial deference has been
held to mean that “an [ALJ’s] credibility findings are virtually ‘unchallengeable.’” Ritchie v.
Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (quoting Payne v. Comm’r of Soc.
Sec., 402 F. App’x 109, 113 (6th Cir. 2010)).
The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible.” (Tr. 16).
Contrary to Plaintiff’s argument, the ALJ expressly identified significant objective medical
evidence that contradicted Plaintiff’s testimony concerning the extent of his symptoms. Plaintiff
underwent a consultative exam in April 2013 with William Wilkinson, M.D. (Tr. 246-51). As the
ALJ noted, Dr. Wilkinson’s exam showed “no obvious redness, swelling, joint enlargement,
muscle wasting, or anatomic deformity.” (Tr. 14; 248). The exam did reveal positive straight leg
testing and some limitation in the extension of Plaintiff’s dorsolumbar spine, but otherwise it was
normal. Plaintiff reported to Dr. Wilkinson that he had shoulder issues such that he could not carry
groceries, and testified to the same at the administrative hearing (Tr. 33, 247). Dr. Wilkinson
found, however, the results of Plaintiff’s shoulder exam were normal (Tr. 248).
Plaintiff also testified at the hearing that he had significant lower back pain; however, as
the ALJ notes, a November 2014 lumbar spine x-ray showed “no evidence of fracture,
compression, vertebral displacement, or paraspinal masses” (Tr. 14), and the reviewing physician
10

specifically found that the “lumbar vertebrae and disc spaces [are] well-maintained in height.” (Tr.
345). The Sixth Circuit has “upheld ALJ decisions based on . . . discounting of the reliability of a
claimant’s testimony about disabling pain when an ALJ finds contradictions between medical
reports and [the] claimant’s testimony.” Joseph v. Comm’r of Soc. Sec., No. 17-4158, 2018 WL
3414141 (6th Cir. July 13, 2018) (citing Walters, 127 F.3d at 531).
After discussing the objective medical evidence which refuted Plaintiff’s complaints of
extreme limitations, the ALJ explained that he discounted Plaintiff’s credibility based on Plaintiff’s
“criminal conviction for interstate transportation of fraudulently obtained goods” (Tr. 16). The
ALJ further explained that:
As of February 6, 2014, the claimant had not sought
outpatient mental health treatment. During his consultative
psychological examination conducted on February 6, 2014 by Dr.
Kimberlee Berry-Sawyer, Ph.D., the claimant reported the ability to
manage his finances with little or no difficulty, prepare simple
meals, wash dishes, keep his area clean, and do his own laundry.
His hobbies include walking and listening to music. He also
described good relationships with a close friend and his mother, and
attending church regularly. These activities do not support his
alleged inability to work. Further diminishing his credibility, are the
inconsistencies in what he reported during this evaluation compared
to what he reported in his April 2013 evaluation (e.g., school history,
did not report going to AA for alcohol usage in the past, different
information regarding previous psychiatric history and treatment,
etc.)
Lastly, the claimant’s presentation and performance during
the February 2014 examination was inconsistent with his April 2013
evaluation. During the most recent examination, the claimant was
able to recall all three named items immediately after they were said
to him. In the serial 3 subtractions from 20, he completed all six
iterations successfully. He successfully completed 6 digits forward
and 2 digits backwards in the Digit Span tasks; spelled the word
“world” correctly forward and backwards; easily named four recent
U.S. Presidents; and complete[d] simple addition and subtraction
tasks in his head. Curiously, he was unable to perform these tasks
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less than one year earlier during his April 2013 examination.
(Tr. 17-18 (citations to the administrative record omitted)). The ALJ also specifically noted the
fact that Plaintiff reportedly walked 10 miles to his April 2013 consultative exam (Tr. 14).
Plaintiff does not point to any evidence in the record to contradict these findings, nor does
he take issue with the ALJ’s conclusion that they detract from his overall credibility. Instead,
Plaintiff highlights the evidence in the record which tends to support his credibility (much of which
the ALJ addresses in his decision), but that “is not the proper inquiry.” Tweedle v. Comm’r of Soc.
Sec., No. 18-5009, Docket no. 15, at page 3 (6th Cir. July 16, 2018) (per curiam) (denying
Tweedle’s argument that the ALJ did not consider the record as a whole in evaluating his
credibility),

available

at

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0350n-06.pdf.

Rather, if “the ALJ’s decision is supported by substantial evidence, then reversal would not be
warranted even if substantial evidence would support the opposite conclusion.” Id. at page 4
(quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)).
The ALJ identified the objective medical evidence that was inconsistent with Plaintiff’s
subjective complaints and with Dr. Wilkinson’s positive straight leg test results and limited
dorsolumbar extension. The ALJ addressed at least some of the relevant factors from 20 C.F.R. §
416.929(c) and SSR 96-7p for evaluating subjective complaints of pain, including that Plaintiff
performed extensive activities of daily living despite his complaints of disabling symptoms. The
Court concludes the ALJ set forth sufficiently clear reasons, which are supported by substantial
evidence, for discounting Plaintiff’s credibility. As a result, the ALJ’s assessment of Plaintiff’s
credibility is entitled to great weight. See King, 742 F.2d at 974-75. To the extent Plaintiff argues
the ALJ should be reversed based on the ALJ’s credibility analysis, Plaintiff’s motion will be
12

denied.
C. The ALJ’s Consideration of Plaintiff’s Non-Severe Impairments
The ALJ found that Plaintiff’s severe impairments consisted of “mood disorder; rule out
borderline intellectual functioning; adult anti-social behavior; and polysubstance abuse” (Tr. 13).
Regarding Plaintiff’s non-severe impairments, the ALJ found:
The claimant has hypertension, and reports headaches when
his blood pressure is high. On April 20, 2013, his blood pressure
was 129/65, which was only in the prehypertension range. His
hypertension was not being treated in October 2014. He began
taking medications when he returned to jail in 2015. His most recent
notes show that his hypertension is controlled with medication and
without report of side effects. I find that the claimant’s
hypertension, and any headaches resulting therefore, are non-severe
because this can be controlled with medication, and thus does not
cause significant limitation to the claimant’s activities.
In order to establish the medically determinable impairment,
an acceptable medical source must be able to submit evidence from
an examination that is supportive of the appropriate signs and
symptoms (and functional limitations) attributed to the alleged
impairment.
The claimant alleges lower back pain and right shoulder
pain, however, on examination in April 2013, there was no obvious
redness, swelling, joint enlargement, muscle wasting, or anatomic
deformity. His dorsolumbar spine appeared normal, but exhibited
to about 15 degrees extension. His cervical spine demonstrated
normal range of motion. Straight leg testing was positive for pain
and his knee demonstrated 120 degrees flexion. The remainder of
his exam was normal, including muscle strength, reflexes, and
sensation. He reported that he could not carry groceries from the car
to the house or lift a two-year-old. He stated that he can stand for
about eight minutes before having to sit; however, during his
consultative psychological examination, the claimant admitted that
he walked some 10 miles to the office. He reported right shoulder
pain in December 2013, and was prescribed Flexeril at the
Southside/Dodson Avenue Community Health Center.
His
November 29, 2014 lumbar spine x-ray showed no evidence of
fracture, compression, vertebral displacement, or paraspinal masses.
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Overall, his lumbar vertebrae and disc spaces were well maintained
in height. The claimant’s complaints of pain without appropriate
imaging do not amount to a medically determinable impairment.
(Tr. 13-14 (citations to the administrative record omitted)).
Plaintiff argues the ALJ erred by not finding Plaintiff’s posttraumatic stress disorder
(“PTSD”), psychotic disorder, sciatica, right shoulder pain and headaches to be severe impairments
[Doc. 12 at Page ID # 504-06].
Plaintiff has the burden of showing he has a severe impairment that meets the 12-month
durational requirement. Harley v. Comm’r of Soc. Sec., 485 F. App’x 802, 803 (6th Cir. 2012)
(citation omitted). Plaintiff must show that “he has an impairment that has lasted or is expected to
last for a continuous period of at least twelve months and that his impairment has significantly
limited his ability to do basic work activities.” Id. (citing 20 C.F.R. §§ 404.1509, 404.1521,
416.909, 416.921).
In support of his argument that his PTSD is a severe impairment, Plaintiff relies solely on
the April 2013 consultative exam performed by Dr. Wilkinson [Doc. 12 at Page ID # 506]. It is
true Dr. Wilkinson reported “Posttraumatic stress disorder from incarceration” as one of Plaintiff’s
“primary allegations” (Tr. 247). Dr. Wilkinson also listed PTSD as one of his “impressions” of
Plaintiff, indicating that “this could be appropriately treated with medications” (Tr. 249).
However, even Plaintiff acknowledges Dr. Wilkinson performed a primarily physical examination
[Doc. 12 at Page ID # 506]. Dr. Wilkinson did note that Plaintiff had “no obvious psychiatric
problems,” and had a “[n]ormal intellect for age” (Tr. 248). He also described Plaintiff’s “mental
status” as: “Appeared a bit confused. Affect was normal. Mood is normal. Thought process is
basically normal and had some problems with comprehension.” (Tr. 249). Based on the exam
14

report, it is unclear how Dr. Wilkinson concluded Plaintiff had PTSD, other than by relying on
Plaintiff’s own subjective complaints. The ALJ properly cited Plaintiff’s discounted credibility
and the lack of clinical exam findings as good reasons for discounting Dr. Wilkinson’s opinion5
(Tr. 16).
Moreover, the Court notes Dr. Wilkinson assigned no functional limitations based on
Plaintiff’s alleged PTSD, and a “mere diagnosis . . . says nothing about the severity of the
condition.” Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (citation omitted). Rather, a
claimant must “produce or point to some evidence that indicates an alleged impairment impacts
his ability to perform basic work activities.” Johnson v. Astrue, No. 3:09-CV-317, 2010 WL
2803579, at *5 (E.D. Tenn. June 30, 2010), R&R adopted, No. 3:09-CV-217, 2010 WL 2836137
(E.D. Tenn. July 15, 2010). Plaintiff has not done so.
Plaintiff also contends the ALJ “failed to give proper weight to the diagnosis of psychotic
disorder made by long time actual mental health care provider Volunteer Behavioral Health Care
Systems.” [Doc. 12 at Page ID # 506]. The ALJ does not discuss a psychotic disorder diagnosis,
and as far as the Court can tell, does not cite to the VBHCS records in his opinion. This is
concerning to the Court because it appears Plaintiff worked with various providers at VBHCS
several times between mid-2014 and early 2015. VBHCS assisted Plaintiff with getting housing
and access to medication (Tr. 378, 382, 384-85). But, as with his PTSD argument, Plaintiff does

5

At the end of his brief, and without further development, Plaintiff very briefly asserts the “ALJ
committed errors of law in failing to assign more weight to actual examining and actual treating
sources.” [Doc. 12 at Page ID # 510]. Under the circumstances, the Court declines to address in
detail whether the ALJ properly applied the well-known “treating physician rule” (which was
recently abrogated for claims filed after March 27, 2017 (see 20 C.F.R. § 404.1520c)). The Court
finds there is more than adequate support in the record for the ALJ’s consideration of and weight
assigned to Dr. Wilkinson’s opinion.
15

not cite to any specific limitations arising as a result of his psychotic disorder that are discussed in
the VBHCS records but not covered in the limited mental RFC crafted by the ALJ (simple and
low-level detailed work, occasional interactions with the general public, co-workers and
supervisors, and infrequent changes). Plaintiff’s entire argument regarding the psychotic disorder
diagnosis is one-sentence long, and he does not cite to anything specific in the 89-pages of VBHCS
records, other than the simple fact of the diagnosis. Plaintiff does not explain or even remotely
address why his alleged psychotic disorder symptoms are different than those arising from the
“mood disorder; rule out borderline intellectual functioning; adult anti-social behavior; and
polysubstance abuse” which the ALJ did find were severe impairments, and which are
accommodated in the RFC.
Plaintiff fails to identify what basic work activities his alleged PTSD and psychotic
disorder prevent him from being able to perform. It is clear the ALJ considered Plaintiff’s various,
serious mental health issues in crafting Plaintiff’s mental RFC. In particular, the ALJ assigned
significant weight to the opinion of the Department of Disability Services specialist, Rebecca
Joslin, Ed.D., who found Plaintiff was mildly restricted in his ability to perform activities of daily
living, moderately restricted in maintaining social functioning, and moderately restricted in his
ability to maintain concentration, persistence or pace (Tr. 18, 69). Accordingly, the Court finds
no harmful error in the ALJ’s determination that Plaintiff’s alleged PTSD and psychosis were not
severe impairments, and further finds the ALJ’s restrictive mental RFC adequately accommodates
Plaintiff’s mental impairments.

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As for his physical impairments, Plaintiff argues the ALJ’s decision should be reversed
and benefits awarded because the ALJ found Plaintiff’s headaches were non-severe. He argues
the ALJ “failed to give proper weight to the diagnosis of cephalgia made at Erlanger Health System
after obtaining a history and performing a physical examination.” [Doc. 12 at Page ID # 506].
Cephalgia means “headache,”6 although Plaintiff does not explain the meaning of the word or cite
to the page number in the Erlanger records where it appears.
The ALJ found Plaintiff’s headaches were the result of high blood pressure, or
hypertension, issues (Tr. 13-14), a finding which Plaintiff does not challenge, and which is
supported by Plaintiff’s medical records from Silverdale Correctional (Tr. 259 (stating Plaintiff
has “headaches . . . when BP is high”)). As the ALJ found, Plaintiff has a history of hypertension
which was not being treated in October 2014, when Plaintiff presented at the Erlanger Emergency
Room for an issue with his heel (Tr. 13-14, 310). He went to jail at some point in mid-2015, and
was provided with blood pressure medication and monitoring (Tr. 260, 265, 268, 277). There is
at least some indication in the record that Plaintiff’s blood pressure is controlled by medication
(Tr. 259 (“BP hasn’t been as well controlled with medication changes.”); 287 (from 2008, but
indicates that Htn, or hypertension, is “controlled,” and that Plaintiff was “doing ok on meds”)).
Thus, if the blood pressure can be controlled with medication, and the headaches arise from high
blood pressure, it follows Plaintiff’s headaches are also controllable with medication. And
“evidence that medical issues can be improved when using prescribed drugs supports [a] denial of

6

See Stedmans Medical Dictionary, 161870 (explaining that “cephalalgia” is a synonym for
“headache”).
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disability benefits.” Smith v. Comm’r of Soc. Sec., 564 F. App’x 758, 762-63 (6th Cir. 2014)
(citing Hardaway v. Sec’y, 823 F.2d 922, 927 (6th Cir. 1987)) (other citation omitted).
Accordingly, the Court rejects Plaintiff’s argument that the ALJ erred in determining Plaintiff’s
headaches were non-severe impairments.
Finally, Plaintiff argues the ALJ should have concluded his musculoskeletal complaints
were severe. The ALJ did not accommodate Plaintiff’s musculoskeletal complaints in formulating
Plaintiff’s physical RFC, because the ALJ found that they were not medically determinable
impairments (Tr. 14-15). Plaintiff alleges that in doing so, the ALJ failed to properly consider the
“diagnoses of left leg pain and sciatica made by health care providers at Memorial hospital,” and
the “right shoulder diagnosis made by Southside/Dodson Avenue Community Health Centers.”
[Doc. 12 at Page ID # 506]. He appears to argue these diagnoses are supported by Plaintiff’s own
testimony and Dr. Wilkinson’s report [id. at Page ID # 507].
Plaintiff did present to the Memorial Hospital Emergency Room (“Memorial”) in
November 2014, complaining of “groin pain radiating to L[eft] ankle.” (Tr. 351). He was given
medication and instructed to “ice 4-5x/day/ Follow up with primary MD & orthopedic.” (Tr. 35556). Other than the stated restrictions for 4-5 days, there are no other limitations set forth in the
Memorial records, and Plaintiff does not cite to any subsequent records indicating he sought further
treatment for his alleged sciatica.7 Moreover, the ALJ expressly considered the Memorial records,

7

Although the ALJ did not discuss “leg pain” as such in his decision, he did discuss “lower back
pain,” both of which are associated with sciatica, which appears to be Plaintiff’s chief complaint
concerning his lower back and leg. See Stedmans Medical Dictionary 801240 (sciatica is “[p]ain
in the lower back and hip radiating down the back of the thigh into the leg, initially attributed to
sciatic nerve dysfunction (hence the term), but now known to usually be due to herniated lumbar
disk compressing a root nerve, most commonly the L5 or S1 root.”).
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emphasizing that despite Plaintiff’s complaints of pain, a lumbar spine x-ray performed at
Memorial produced only normal results (Tr. 14, 345). The fact that about a year and a half earlier,
Dr. Wilkinson found positive results on Plaintiff’s straight leg test (left side) and limited extension
of Plaintiff’s dorsolumbar spine does not change this result. The ALJ considered and discussed
Dr. Wilkinson’s findings and weighed them against the results of the x-ray performed at Memorial
and Plaintiff’s discounted credibility factors (including the fact that Plaintiff reported walking 10
miles to his consultative exam) and found Plaintiff’s sciatica was not a medically determinable
impairment. The Sixth Circuit has consistently upheld the discretion vested in ALJs to weigh
conflicting record evidence in assessing disability status. See DeLong v. Comm’r of Soc. Sec., 748
F.3d 723, 726 (6th Cir. 2014) (noting that “cherry picking” allegations—that the ALJ only
considered the evidence which weighed against a finding of disability—are seldom successful
because crediting them would require courts to re-weigh record evidence).
The Southside/Dodson Avenue Community Health record, which is the only proof Plaintiff
cites in support of his claim that his shoulder pain is a medically determinable impairment, is a
single, handwritten page that is partially illegible (Tr. 305). It indicates Plaintiff complained of
experiencing severe shoulder pain for two days on December 27, 2013, and he was prescribed
Flexeril (Tr. 14, 305). The record does not explain whether his subjective complaints were
confirmed by an exam or any imaging techniques. Nor does it indicate the nature of the injury or
whether, when, or how the physician expected the issue to be resolved. Moreover, his April 2013
shoulder exam by Dr. Wilkinson was “normal.” (Tr. 248). The Court finds the ALJ considered all
of the records concerning Plaintiff’s shoulder issues, as well as Plaintiff’s testimony and subjective
complaints, and further finds there is substantial support for the ALJ’s determination that
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Plaintiff’s “shoulder pain” was not a medically determinable impairment.
In sum, the Court finds the ALJ’s determination concerning Plaintiff’s alleged impairments
is supported by substantial evidence. Significantly, Plaintiff fails to allege any further restrictions
on his mental RFC required by his PTSD and psychotic disorder, or point to any opinion or other
indication of their severity. The ALJ’s finding that Plaintiff’s headaches are caused by his high
blood pressure, which in turn can be controlled by medication, is supported by substantial evidence
in the record. Finally, the Court finds no error with the ALJ’s determination that Plaintiff failed
to produce adequate evidence of medically determinable impairments in his shoulder or left
leg/lower back. Plaintiff’s motion will be denied on these issues.
D. Plaintiff’s Physical RFC
As discussed above, Plaintiff’s remaining arguments are an attack on the ALJ’s
determination that Plaintiff could perform work at all exertional levels, and was therefore capable
of performing his past relevant work as a general laborer, which requires medium exertion.
Plaintiff’s contention is that he is limited to light work [Doc. 12 at Page ID # 508-10]. Plaintiff
argues that due to his age at the date of application, as well as his education and work history, a
limitation to light work would cause him to qualify for benefits under the Medical-Vocational
Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2.
RFC is the most a claimant can do despite his or her impairments.

20 C.F.R. §

404.1545(a)(1). In other words, the RFC describes “the claimant’s residual abilities or what a
claimant can do, not what maladies a claimant suffers from—though the maladies will certainly
inform the ALJ’s conclusion about the claimant’s abilities.” Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 240 (6th Cir. 2002). Moreover, “[a] claimant’s severe impairment may or may not affect
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his or her functional capacity to do work. One does not necessarily establish the other.” Griffeth,
217 F. App’x at 429. An ALJ is responsible for determining a claimant’s RFC after reviewing all
of the relevant evidence in the record. Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th
Cir. 2013). Plaintiff has the burden of proving any limitations to his RFC. See Her v. Comm’r,
203 F.3d 388, 391 (6th Cir. 1999) (citations omitted).
In making his physical RFC arguments, Plaintiff again relies heavily on his own subjective
complaints and the findings of the consultative examiner, Dr. Wilkinson. The Court has already
addressed Plaintiff’s credibility and Dr. Wilkinson’s opinions and will not repeat that analysis
here. It suffices to note there is adequate support in the record for the ALJ’s conclusion that
Plaintiff was not fully credible, and the ALJ gave good reasons for discounting Dr. Wilkinson’s
opinions concerning Plaintiff’s functional limitations, which the ALJ reasonably found were based
mostly on Plaintiff’s subjective complaints and were not justified by the results of Dr. Wilkinson’s
exam of Plaintiff. The Court has also already explained in detail that the ALJ did not err in
concluding Plaintiff failed to show any medically determinable physical impairments. With no
medically determinably physical impairments, and a history of performing at least medium
exertional work, Plaintiff’s argument that he is limited to performing light work is without merit.
The Court finds no error in the ALJ’s determination that Plaintiff failed to show he was incapable
of performing medium exertion work. Plaintiff’s motion will be denied in this regard.
V.

CONCLUSION
For the foregoing reasons, it is ORDERED that:
1) Plaintiff’s motion for judgment on the administrative record [Doc. 10] is
DENIED;

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2) The Commissioner’s motion for summary judgment [Doc. 13] 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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