Martin v. Social Security Administration, Commissioner of
MEMORANDUM OPINION. Signed by Magistrate Judge Debra C Poplin on 9/7/21. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
DONNA D. MARTIN,
KILOLO KIJAKAZI 1,
Acting Commissioner of Social Security,
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal
Rules of Civil Procedure, and the consent of the parties [Doc. 12]. Now before the Court are
Plaintiff’s Motion for Judgment on the Pleadings [Doc. 22] and Defendant’s Motion for Summary
Judgment and Memorandum in Support [Doc. 24]. 2 Donna D. Martin (“Plaintiff”) seeks judicial
review of the decision of the Administrative Law Judge (“the ALJ”), the final decision of
Defendant Kilolo Kijakazi (“the Commissioner”). For the reasons that follow, the Court will
DENY Plaintiff’s motion and GRANT the Commissioner’s motion.
On January 25, 2016, Plaintiff filed an application for disability insurance benefits pursuant
to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., claiming a period of disability that
Kilolo Kijakazi became the Acting Commissioner of the Social Security Administration
(“the SSA”) 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. See 42 U.S.C. § 405(g).
Plaintiff also filed a Motion for Leave to File Reply Brief [Doc. 26], which is not
necessary under the applicable Local Rules. Plaintiff subsequently filed duplicate replies [Docs.
27 and 28]. Therefore, Plaintiff’s Motion for Leave [Doc. 26] will be DENIED AS MOOT,
although the Court will consider Plaintiff’s Reply [Doc. 27].
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began on October 25, 2015, but subsequently amended to April 1, 2016. [Tr. 12, 35–37, 202–06].
After her applications were denied initially and upon reconsideration, Plaintiff requested a hearing
before an ALJ. [Tr. 118]. A hearing was held on February 12, 2019. [Tr. 31–63]. 3 On March 25,
2019, the ALJ found that Plaintiff was not disabled. [Tr. 12–23]. The Appeals Council denied
Plaintiff’s request for review on March 6, 2020 [Tr. 1–6], making the ALJ’s decision the final
decision of the Commissioner.
Having exhausted her administrative remedies, Plaintiff filed a Complaint with this Court
on May 5, 2020, seeking judicial review of the Commissioner’s final decision under Section 405(g)
of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive motions, and
this matter is now ripe for adjudication.
The ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2020.
2. The claimant has not engaged in substantial gainful activity since
April 1, 2016, the amended alleged onset date (20 CFR 404.1571 et
3. The claimant has the following “severe” impairments:
degenerative disc disease of the cervical and lumbar spine;
degenerative joint disease of the bilateral knees; cervicalgia;
depressive disorder; panic disorder; anxiety disorder; and posttraumatic stress disorder (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
Plaintiff initially appeared for a hearing on August 8, 2018, which was subsequently
rescheduled. [Tr. 64–72].
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5. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) except she is limited to standing
and walking a maximum of four hours of eight hours in a workday.
The claimant can do no climbing of ladders, ropes or scaffolds and
no more than occasionally climbing of ramps and stairs. She can
perform occasional postural maneuvers (balancing, stooping,
kneeling, crouching and crawling). She is limited to simple and
detailed job tasks (SVP 1-4), but she cannot do skilled work (SVP 5
and above). She must have no more than occasional interaction with
6. The claimant is unable to perform any past relevant work (20
7. The claimant was born on January 27, 1967 and was 48 years
old, which is defined as a younger individual age 18-49, on the
alleged disability onset date. The claimant subsequently changed
age category to closely approaching advanced age (20 CFR
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can
perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the
Social Security Act, from April 1, 2016, through the date of this
decision (20 CFR 404.1520(g)).
STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled
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pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision
was reached through application of the correct legal standards and in accordance with the
procedure mandated by the regulations and rulings promulgated by the Commissioner, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004).
Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It
is immaterial whether the record may also possess substantial evidence to support a different
conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the
case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
The substantial evidence standard is intended to create a “‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Additionally,
the Supreme Court recently explained that “‘substantial evidence’ is a ‘term of art,’” and “whatever
the meaning of ‘substantial’ in other settings, the threshold for such evidentiary sufficiency is not
high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted). Rather, substantial
evidence “means—and means only—’such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
Therefore, the Court will not “try the case de novo, nor resolve conflicts in the evidence,
nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation
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omitted). On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes
v. Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).
Furthermore, the Court is not under any obligation to scour the record for errors not identified by
the claimant and arguments not raised and supported in more than a perfunctory manner may be
deemed waived. See 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).
“Disability” means an individual cannot “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.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will only be
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, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
If claimant is doing substantial gainful activity, he is not
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected
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to last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy
that accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is
“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§
404.1520(a)(4) and -(e), 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his
limitations. 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1).
The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.
The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must
prove that there is work available in the national economy that the claimant could perform. Her
v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,
Plaintiff asserts that the ALJ’s disability determination is not supported by substantial
evidence because the ALJ mischaracterized and ignored significant aspects of the letter provided
by Plaintiff’s supervisor; improperly relied on the opinions of the nonexamining state agency
physicians who did not review the complete medical record; and failed to properly consider the
evidence and opinion from Plaintiff’s treating physician. The Court will address Plaintiff’s
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allegations of error in turn.
Letter from Plaintiff’s Supervisor
Plaintiff asserts that the ALJ failed “to properly consider and/or mischaracterize[d]” the
letter provided by Emily Gray, Plaintiff’s supervisor at her part-time job. [Doc. 23 at 9]. Plaintiff
submitted the letter from her supervisor, Ms. Gray, at Southeastrans, Inc., where Plaintiff currently
works as a Customer Service Representative on multiple contracts with the company on the
weekend shift. [Tr. 379]. Ms. Gray stated that Plaintiff was “responsible for scheduling and
dispatching non-emergency medical transportation for individuals with Tenncare and BlueCare
insurance.” [Id.]. Additionally, Ms. Gray detailed that Plaintiff had been working for the company
for almost three years, and she had observed that Plaintiff “frequently complains about her knees
hurting, back pain and having headaches, which causes problems with her being late or absent
from work, as well as she often comes into work and must use a heating pad for her back.” [Id.].
Lastly, Ms. Gray provided that Plaintiff wears knee braces every weekend and that she “witnessed
[Plaintiff’s] anxiety acting up more when we have agents in the center on the weekend that come
in to do overtime.” [Id.]. Therefore, Ms. Gray stated that “[d]ue to these issues, [Plaintiff] has
continued to change her shift and shift hours to continue working with Southeastrans.” [Id.].
In the disability decision, the ALJ first noted that Plaintiff’s “work activity is very close to
the threshold of substantial gainful activity,” as well as that “[h]er employer has provided a letter
describing her symptoms and work problems, but this letter does not describe any special work
accommodations.” [Tr. 15]. Additionally, the ALJ found that Plaintiff’s “ability to perform basic
work activities is a non-medical factor inconsistent with her alleged inability to work and has been
considered as such in evaluating her residual functional capacity.”
In the RFC
determination, the ALJ found that Plaintiff’s “medically determinable impairments could
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reasonably be expected to cause only a portion of the alleged symptoms,” and therefore, Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record.” [Tr. 18]. In
addition to several additional reasons, the ALJ relied upon Plaintiff’s “work activity, in addition
to her described daily activities and the objective evidence,” which supported a finding that
Plaintiff “has greater functional ability than she alleged.” [Id.].
Plaintiff asserts that the letter from Ms. Gray “is consistent with [her] allegations and
provides substantial support for a finding of disability.” [Doc. 23 at 10]. Plaintiff claims that
contrary to the ALJ’s conclusion, Ms. Gray’s letter details several special accommodations—such
as her being late or absent from work and continuing to change her shift time. Further, Plaintiff
maintains that “the ALJ erroneously found that [her] work activity is a non-medical factor that is
inconsistent with her allegations of an inability to work,” as Ms. Gray’s letter notes “her difficulties
with being late to work and with being absent f[r]om work due to her disabling impairments.” [Id.
The Commissioner responds that “the ALJ considered Ms. Gray’s observations and
permissibly concluded that the noted ‘symptoms and work problems’ were not consistent with the
objective medical and other evidence in the record.”
[Doc. 25 at 18].
Commissioner alleges that “the ALJ considered all of the available evidence, including Ms. Gray’s
letter, but he permissibly concluded that the observations she set forth were not consistent with the
record as a whole, including Plaintiff’s repeatedly benign imaging studies . . . routine and
conservative treatment history . . . and generally mild physical examination findings.” [Doc. 25 at
19]. Plaintiff replies [Doc. 27] that the ALJ did not find that Ms. Gray’s letter was inconsistent
with the medical record, but instead mischaracterized the letter as stating that it did not describe
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any special work accommodations.
At the outset, the Court notes that it could have found that Plaintiff’s argument was waived,
as Plaintiff fails to cite to any supporting case law or applicable regulations in support of her first
allegation of error. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its bones.”); see, e.g., Kurt D. v. Saul, No. 1:18CV-297-SEB-MPB, 2019 WL 3848769, at *3 (S.D. Ind. July 26, 2019) (“Given Kurt D.
did not cite any case law or regulations indicating that the agency waives its right to collect an
overpayment if it does not notify a claimant within a certain time period, the undersigned finds
that this argument has been waived.”), report and recommendation adopted sub nom., Deichmann
v. Saul, 2019 WL 3842569 (S.D. Ind. Aug. 15, 2019).
However, the Court ultimately finds that the ALJ properly considered Ms. Gray’s letter as
a factor in evaluating Plaintiff’s subjective symptoms of disability. The regulations provide that
an ALJ may consider information from “non-medical sources.”
See 20 C.F.R. §§
404.1513(d)(4), 416.913(d)(4); see also Social Security Ruling 06–3p, 2006 WL 2329939, at *2
(Aug. 9, 2006) (listing “other sources” as defined in §§ 404.1513(d) and 416.913(d) as including
“spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, clergy, and
employers”). 4 Plaintiff does not assert that the ALJ failed to appropriately consider Ms. Gray’s
SSR 06–03p was rescinded effective March 27, 2017, see Notice of Rescission of Social
Security Rulings, 82 Fed. Reg. 15263–01 (March 27, 2017), but was applicable to the ALJ’s
decision. “[N]umerous district courts in the Sixth Circuit, including [the Middle District of
Tennessee], have held that the Commissioner’s rescission of SSR 06-03p applies only to disability
claims filed on or after March 27, 2017.” Kemp v. Saul, No. 3:19-0431, 2020 WL 4937507, at *4
(M.D. Tenn. Aug. 24, 2020), report and recommendation adopted by 2020 WL 6305566 (M.D.
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letter in violation of Social Security Ruling 06-3p. In Lohr v. Comm’r of Soc. Sec., 559 F. Supp.
2d 784 (E.D. Mich. 2008), the Eastern District of Michigan considered a similar issue and found
that the ALJ’s “failure to consider, much less even mention” the limitations provided by two of
the plaintiff’s supervisors constituted reversible error. Id. at 793–94. However, unlike in Lohr,
the ALJ in the present case explicitly discussed Ms. Gray’s letter. Additionally, “the evidence
omitted from the administrative opinion in Lohr involved the subject applicant’s ability to perform
his previous work, which the ALJ relied on in denying the plaintiff’s application at step four of the
evaluation.” Kemp, 2020 WL 4937507, at *5. Ultimately, here, the ALJ “otherwise ensure[d] that
the discussion of the evidence in the . . . decision allows a claimant or subsequent reviewer to
follow the adjudicator’s reasoning.” SSR 06-3p at *6.
Further, in addition to Plaintiff’s failure to support her contention that the ALJ’s alleged
mischaracterization of Ms. Gray’s opinion constituted a basis for remand, the Court does not find
that the ALJ mischaracterized Ms. Gray’s letter in the disability decision. While Plaintiff points
to Ms. Gray’s description of Plaintiff using a heating pad for her back and wearing knee braces,
there is no evidence regarding whether their use would interfere with Plaintiff’s ability to perform
work-related tasks. Moreover, to the extent Plaintiff portrays Ms. Gray’s observation that Plaintiff
has problems with being late or absent from work and that Plaintiff “has continued to change her
shift and shift hours,” as formal work accommodations precluding the performance of any work
on a full-time, consistent basis, such assertion would be inaccurate. Plaintiff cites no authority
suggesting that an ALJ errs by failing to incorporate a lay witness’s statement that simply suggests
possible limitations may (or may not) be necessary. See Boykins v. Comm’r of Soc. Sec., No. 1:13-
Tenn. Oct. 28, 2020).
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CV-1024, 2015 WL 1477756, at *9 (W.D. Mich. Mar. 31, 2015) (“The testimony of lay witnesses
. . . is entitled to perceptible weight only if it is fully supported by the reports of the treating
physicians.”) (quoting Simons v. Barnhart, 114 F. App’x. 727, 733 (6th Cir. 2004)). Plaintiff does
not address any particular medical records which demonstrate that Ms. Gray’s observations are
fully supported by the reports of treating physicians. Additionally, it is clear that the ALJ
considered Plaintiff’s symptoms and work problems noted in Ms. Gray’s letter but permissibly
concluded that Plaintiff’s ability to perform basic work activities was inconsistent with claimed
Lastly, Plaintiff does not challenge the remaining factors relied upon by the ALJ in finding
that her statements concerning the disabling effects of her symptoms were not entirely consistent
with the medical record and other evidence in the record. The ALJ’s decision postdates Social
Security Ruling 16-3p, which eliminates the use of the term “credibility” from the applicable
policy regulation and clarifies that a “subjective symptom evaluation is not an examination of an
individual’s character.” 2016 WL 1119029, at *1 (Mar. 16, 2016); see also Rhinebolt v. Comm’r
of Soc. Sec., No. 2:17-CV-369, 2017 WL 5712564, at *8 (S.D. Ohio Nov. 28, 2017) (noting that
under SSR 16-3p, “an ALJ must focus on the consistency of an individual’s statements about the
intensity, persistence and limiting effects of symptoms, rather than credibility”), report and
recommendation adopted by 2018 WL 494523 (S.D. Ohio Jan. 22, 2018). However, “[t]he twostep process and the factors ALJs consider when assessing the limiting effects of an individual’s
symptoms have not changed with the advent of SSR 16-3p.” Holder v. Comm’r of Soc. Sec., No.
1:17-CV-00186-SKL, 2018 WL 4101507, at *10 n.5 (E.D. Tenn. Aug. 28, 2018).
The ALJ is still tasked with first determining whether there is an “underlying medically
determinable physical or mental impairment(s) that could reasonably be expected to produce an
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individual’s symptoms, such as pain.” SSR 16-3p, 2016 WL 1119029, at *2–3. Then, the ALJ is
responsible for determining the intensity, persistence, and limiting effects of an individual’s
symptoms, including assessing their: (1) daily activities; (2) the location, duration, frequency, and
intensity of pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4)
the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken
to alleviate pain or other symptoms; (5) treatment, other than medication, an individual receives
or has received for relief of pain or other symptoms; (6) any measures other than treatment an
individual uses or has used to relieve pain or other symptoms; and (7) any other factors concerning
an individual’s functional limitations and restrictions due to pain or other symptoms. Id. at *4–8.
“Despite the linguistic clarification, courts continue to rely on pre-SSR 16-3p authority
providing that the ALJ’s credibility determinations are given great weight.” Getz v. Comm’r of
Soc. Sec., No. CV 18-11625, 2019 WL 2710053, at *3–4 (E.D. Mich. June 10, 2019), report and
recommendation adopted by 2019 WL 2647260 (E.D. Mich. June 27, 2019) (citing Kilburn v.
Comm’r of Soc. Sec., No. 1:17-CV-603, 2018 WL 4693951, at *7 (S.D. Ohio Sept. 29, 2018); Duty
v. Comm’r of Soc. Sec., No. 2:17-CV-445, 2018 WL 4442595, at *6 (S.D. Ohio Sept. 18, 2018)).
Here, the Court finds that the ALJ appropriately reviewed the intensity, persistence and
limiting effects of Plaintiff’s symptoms pursuant to SSR 16-3p. See Ulman v. Comm’r of Soc.
Sec., 693 F.3d 709, 713–14 (6th Cir. 2012) (“As long as the ALJ cite[s] substantial, legitimate
evidence to support his factual conclusions, we are not to second-guess.”). The ALJ noted that
Plaintiff “maintained the ability to perform an array of daily activities,” such as cooking meals,
washing dishes, shopping in stores, and working part-time. [Tr. 18]. Here, the ALJ found that
Plaintiff’s “work activity, in addition to her described daily activities and the objective evidence
support a finding [that] the claimant has greater functional ability than she alleged.” [Id.].
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Additionally, the ALJ found that the objective evidence was only partially consistent with
Plaintiff’s allegations, concluding that her “symptoms have benefited from conservative and
routine treatment.” [Id.]. Similarly, the ALJ noted that “[w]hile the claimant alleged her
impairments limited her ability to lift, squat, bend, stand, reach, walk, sit, kneel and climb stairs,
physical examinations demonstrate greater functional ability.” [Tr. 19]. Therefore, Plaintiff’s
allegation of error regarding the ALJ’s treatment of the letter of her supervisor does not present a
basis for remand.
Nonexamining State Agency Physicians
Plaintiff asserts that the ALJ erred in relying on the opinions of the nonexamining state
agency physicians, as they only considered evidence prior to December 31, 2016. [Doc. 23 at 13].
Plaintiff notes that her date last insured was subsequently corrected to December 31, 2018, and
again later corrected to December 31, 2020. Plaintiff cites to numerous treatment records which
she claims the nonexamining state agency physicians did not review, including treatment records
relating to her intermittent diarrhea and constipation which she claims, “is inconsistent with the
State agency consultants’ opinions and the ALJ’s decision that [she] does not have a severe
gastrointestinal and/or digestive impairment.” [Id. at 15]. Similarly, Plaintiff cites to the alleged
significant mental health records which the nonexamining state agency physicians did not review,
as well as asserts that these physicians did not review x-rays of her lumbar spine that revealed
“exuberant marginal osteophyte spurring and facet arthropathy on the left at L4-5 and L5-S1.” [Id.
The Commissioner responds that the RFC is not required to mirror any opinion from a
medical source and “the ALJ permissibly weighed all of the evidence, comparing each opinion
with the objective medical and other evidence in the entire record, including the subsequently
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submitted evidence.” [Doc. 25 at 21]. Additionally, the Commissioner notes that the ALJ’s RFC
determination was “not identical to the assessments of the State agency consultants,” as “the ALJ
implemented limitations that accounted for, among other conditions, Plaintiff’s severe mental
impairments, while the State agency consultants did not.” [Id.]. Plaintiff replies that “the ALJ’s
RFC assessment with regard to [her] physical capabilities and limitations is literally identical to
the State agency consultants’ opinions from the initial denial in this case.” [Doc. 27 at 3].
State agency medical consultants, Reeta Misra, M.D. and Iris Rotker, M.D. reviewed the
evidence of record at the initial and reconsideration levels of the agency’s review on December
29, 2016 and April 20, 2017, respectively. [Tr. 84–88, 103–05]. Dr. Misra opined that Plaintiff
could lift and/or carry twenty pounds occasionally and ten pounds frequently, as well as stand
and/or walk for four hours and sit about six hours in an eight-hour workday. [Id.]. Further, Dr.
Misra found that Plaintiff could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps
and stairs, but that she could never climb ladders, ropes, or scaffolds. [Id.]. Dr. Rotker affirmed
Dr. Misra’s findings at the reconsideration level of the agency’s review. [Id.].
State agency psychological consultants, M. Duncan Currey, Ph.D. and Larry Welch, Ed.D.,
reviewed Plaintiff’s mental impairments using the psychiatric review technique on January 5, 2017
and April 19, 2017, respectively. [Tr. 81–83, 100–01]. Dr. Currey found that Plaintiff had
nonsevere impairments of affective disorder, anxiety disorder, and substance addiction disorder,
as well as that Plaintiff had mild restriction of activities of daily living, difficulties in maintaining
social functioning, and maintaining concentration, persistence, or pace, but that she had no
repeated episodes of decompensation. [Tr. 82–83]. As noted by the Commissioner, although the
“specific criteria of the psychiatric review technique changed in the intervening period between
these two assessments,” [Doc. 25 at 8 (citing 81 Fed. Reg. 66137, 66164–65 (Jan. 17, 2017)], Dr.
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Welch found identical nonsevere impairments, as well as mild limitations in Plaintiff’s ability to
understand, remember, or apply information; interact with others; concentrate, persist, or maintain
pace; and adapt or manage oneself. [Tr. 100–01].
In the disability decision, the ALJ found that “the medical opinions are generally in accord
with a modified-light RFC and not persuasive in limiting the claimant further than the residual
functional capacity set forth above.” [Tr. 20]. The ALJ noted that the state agency medical
consultants “found the claimant could perform light work with additional postural limitations due
to” Plaintiff’s knees. [Id.]. The ALJ afforded great weight to “this opinion because the limitations
are consistent with the objective findings” and Plaintiff’s limited medical treatment. [Id.].
Plaintiff was also consultatively examined by Stephen Goewey, M.D., on April 11, 2016.
[Tr. 480]. After her examination, Dr. Goewey assessed that Plaintiff “will be able to sit between
four and six hours daily, stand and walk between three and four hours daily, [and] lift and carry
between 20 and 25 [pounds] frequently.” [Tr. 483]. The ALJ afforded great weight to this opinion
“because the limitations are based on the objective results of the examination and are consistent
with the benign physical examinations throughout the medical record.” [Tr. 19].
Plaintiff was examined again by Dr. Goewey on December 14, 2016. [Tr. 504]. Dr.
Goewey opined that Plaintiff could sit between four and six hours daily and stand/walk for at least
four hours daily, as well as lift and carry at least twenty to thirty pounds frequently. [Tr. 506].
Additionally, Dr. Goewey advised limited activities of squatting, kneeling, and bending. [Id.].
Lastly, Dr. Goewey found that Plaintiff did not require the use of accessory equipment for
ambulation. [Id.]. The ALJ similarly afforded great weight to this opinion, finding “the limitations
are consistent with the examination, which showed the claimant’s impairments are not
prohibitively restrictive.” [Tr. 20].
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Plaintiff was consultatively examined by Dee Langford, Ed.D. on April 20, 2016. [Tr.
486]. Dr. Langford opined that Plaintiff appears to fall into the average range of intellectual
functioning, showed no evidence of short-term memory impairment, showed evidence of mild
impairment in her ability to sustain concentration, and showed no evidence of impairment in her
long-term and remote memory functioning. [Tr. 489]. Dr. Langford assessed that Plaintiff
“appears to meet the criteria for a depressive condition in that she has lost interest and enjoyment
in usual activities,” as well as that “[h]er energy and activity are decreased, and she reports chronic
insomnia” in addition to her decreased self-esteem and confidence. [Id.]. Additionally, Dr.
Langford found that Plaintiff shows some evidence of a mild impairment in her social relating,
appears to be mildly impaired in her ability to adapt to change, but that she appears able to follow
written and spoken instructions. [Id.]. Dr. Langford diagnosed persistent depressive disorder,
depressive disorder due to multiple medical conditions, panic disorder, mild cocaine use disorder,
and moderate cannabis use disorder. [Tr. 490].
In the disability decision, the ALJ afforded little weight to Dr. Langford’s opinions because
“the limitations are based on a one-time assessment of the claimant’s functional abilities and is
inconsistent with the record as a whole.” [Tr. 21]. Additionally, the ALJ found that Plaintiff’s
“mental treatment records show reduced stress tolerance,” which the ALJ interpreted “as causing
moderate limitation in social interaction and concentration, persistence, and pace.” [Id.]. The ALJ
found that “[f]unctionally interpreted, such limitations would preclude skilled task[s] and limited
her to no more than occasional interaction with the public.” [Id.].
Next, the ALJ found that Plaintiff “conservatively treated her mental impairments with
conservative and routine treatment of medication, medication management, and psychotherapy
sessions,” as well as that “[t]he medical evidence demonstrates with medication, the claimant
Case 1:20-cv-00117-DCP Document 29 Filed 09/07/21 Page 16 of 23 PageID #: 1248
reported improved and decreased symptoms.” [Id.]. Ultimately, the ALJ found that “while the
record shows with medication and consistent treatment, the claimant’s limitations are improved,
the residual functional capacity properly precluded skilled tasks and more than occasional public
interaction.” [Id.]. Therefore, the ALJ accounted for Plaintiff’s mental impairments by “according
reasonable restrictions that are in excess of those accorded by examining/consulting mental
sources of record.” [Id.].
“State agency medical consultants . . . are ‘highly qualified physicians and psychologists
who are experts in the evaluation of the medical issues in disability claims under the [Social
Security] Act.’” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016) (quoting Soc.
Sec. Rul. 96–6p, 1996 WL 374180, at *2 (July 2, 1996)).
Therefore, “[i]n appropriate
circumstances, opinions from State agency medical and psychological consultants and other
program physicians and psychologists may be entitled to greater weight than the opinions of
treating or examining sources.” SSR 96–6p, 1996 WL 374180, at *3. “One such circumstance
. . . [is] when the ‘State agency medical . . . consultant’s opinion is based on review of a complete
case record.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009) (quoting SSR
96–6p, 1996 WL 374180, at *3).
“[B]efore an ALJ accords significant weight to the opinion of a non-examining source who
has not reviewed the entire record, the ALJ must give ‘some indication’ that he ‘at least considered’
that the source did not review the entire record. In other words, the record must give some
indication that the ALJ subjected such an opinion to scrutiny.” Kepke v. Comm’r of Soc. Sec., 636
F. App’x 625, 632 (6th Cir. 2016) (quoting Blakely, 581 F.3d at 409). 5 “[A]n ALJ may rely on
At the outset, the Court admonishes both parties for their failure to cite to these recent
controlling Sixth Circuit cases directly addressing when the ALJ relies upon the opinion of a
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the opinion of a consulting or examining physician who did not have the opportunity to review
later-submitted medical records if there is ‘some indication that the ALJ at least considered these
facts’ before assigning greater weight to an opinion that is not based on the full record.” Spicer v.
Comm’r of Soc. Sec., 651 F. App’x 491, 493–94 (6th Cir. 2016) (quoting Blakley v. Comm’r of
Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009)). The Sixth Circuit has found that an ALJ satisfied
Blakley by reviewing the medical evidence that was entered after the nonexamining state agency
consultant’s opinion and explaining why the consultant’s opinion was afforded greater weight
despite the subsequent evidence. Id.
The ALJ’s decision reflects that he made an independent determination based on all the
medical evidence and that his analysis spanned the entire record; thus, it was appropriate to accept
the opinions of the nonexamining state agency consultants. See Gibbens v. Comm’r of Soc. Sec.,
659 F. App’x 238, 247–48 (6th Cir. 2016) (affirming ALJ’s assessment of great weight to the dated
nonexamining state agency consultant’s opinion, rather than the current treating physician opinion
found to be inconsistent with the record, as “the ALJ’s own analysis clearly spanned the entire
record—through the final degenerative changes to [Plaintiff’s] spine that culminated in a cervical
discectomy and fusion, the last medical event included in the record”); accord Mcwhorter v.
Berryhill, No. 3:14-cv-1658, 2017 WL 1364678, at *12 (M.D. Tenn. Apr. 14, 2017); Quinlavin v.
Comm’r of Soc. Sec., No. 15-cv-731, 2017 WL 583722, at *4 (N.D. Ohio Feb. 14, 2017). Plaintiff
does not point to any specific medical records that the ALJ did not encompass in the disability
decision and the RFC determination. Moreover, the Court finds that the ALJ extensively discussed
the medical record with respect to Plaintiff’s lumbar spine and mental health treatment in great
nonexamining source who did not review the entire medical record.
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detail. With respect to Plaintiff’s alleged gastrointestinal impairments, the ALJ found that
Plaintiff’s GERD and endometriosis did not constitute severe impairments. [Tr. 15].
In Kepke, the Sixth Circuit found that the ALJ subjected the opinions of two nonexamining
state agency physicians to some scrutiny, as “the ALJ disagreed with [one of the nonexamining
physician’s] assessment[s] of Kepke’s limitations in her activities of daily living and social
functioning, and applied even greater restrictions in this area than [the nonexamining state agency
physician] opined were appropriate.” 636 F. App’x 625, 632 (6th Cir. 2016). Accordingly, as the
ALJ specifically noted that he included “reasonable mental restrictions that are in excess of those
according by examining/consulting mental sources of record,” he subjected the opinions of the
nonexamining state agency physicians to scrutiny. [Tr. 21]. Although the nonexamining state
agency consultants did not review a complete record, “the ALJ’s own analysis clearly spanned the
entire record.” See Gibbens, 659 F. App’x at 247–48. Therefore, the ALJ “subjected [the
nonexaming state agency consultants’] opinion[s] to scrutiny” sufficient to find that he considered
that the nonexamining state agency consultants did not review the entire record. See Kepke, 636
F. App’x at 632.
Ultimately, an ALJ is responsible for determining a claimant’s RFC after reviewing all the
relevant evidence of record. Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 727–28 (6th Cir.
2013). The Court notes that although an ALJ is required to consider every medical opinion in the
record, 20 C.F.R. § 404.1527(c), he is not bound to adopt any particular opinion when formulating
a claimant’s RFC. See Rudd, 531 F. App’x at 728 (“[T]o require the ALJ to base her RFC finding
on a physician’s opinion, ‘would, in effect, confer upon the treating source the authority to make
the determination or decision about whether an individual is under a disability, and thus would be
an abdication of the Commissioner’s statutory responsibility to determine whether an individual
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is disabled.’”) (quoting SSR 96-5p, 1996 WL 374183 (July 2, 1996)). The ALJ is responsible for
weighing medical opinions, as well as resolving conflicts in the medical evidence of
record. Richardson v. Perales, 402 U.S. 389, 399 (1971); see also 20 C.F.R. § 416.946(c) (stating
the final responsibility for assessing a claimant’s RFC rests with the ALJ). The Court finds that
the ALJ appropriately considered the medical opinions of record, and that the ALJ’s RFC
determination is supported by substantial evidence.
Plaintiff’s Treating Physician
Plaintiff asserts that the ALJ failed to properly consider or address evidence and opinions
from her treating physician. Plaintiff submits that she has a history of chronic back and knee pain,
and “bilateral knee unicompartment arthroplasty approximately fifteen years ago, and she was
struck by a motor vehicle in 2010 while a pedestrian, which exacerbated her knee impairments.”
[Doc. 23 at 17]. Plaintiff cites to the May 20, 2010 progress note from Joshua A. Johnston, M.D.,
indicating that Plaintiff reported with complaints of right knee pain for an assessment after her
right knee arthroplasty. [Tr. 654–55]. Dr. Johnston noted that he did “not see any evidence of
new fracture, subluxation, [or] dislocation,” that Plaintiff “sustained a contusion of the knee
following the injury . . . that will resolve with time,” that “[s]ome of the pain she is experiencing
now may be due to the residual arthrosis of her lateral and patellofemoral compartments,” and that
“[g]iven the malalignment, I think this will continue to go on to failure, and she will need a revision
total knee arthroplasty at some point in the future.” [Tr. 655]. However, Plaintiff excludes the
remainder of Dr. Johnston’s notation that “at this point, it is not bothersome enough for her to want
to proceed with this” and “[i]n any event, she is very young and this would be a much larger
procedure than her initial procedure.” [Id.].
Plaintiff claims this treatment note is an opinion that is consistent with the opinion of the
Case 1:20-cv-00117-DCP Document 29 Filed 09/07/21 Page 20 of 23 PageID #: 1252
consultative examiner noting a limited range of motion in her knee. Therefore, Plaintiff claims
that “despite this extremely significant evidence regarding the severity of [her] bilateral knee
impairments, the ALJ failed to evaluate or even consider this evidence in his decision.” [Doc. 23
at 18]. Ultimately, Plaintiff asserts that the ALJ failed to afford proper weight to the opinion of
her treating physician.
The Commissioner responds that “Dr. Johnston indicated nearly six years before Plaintiff’s
onset date” that she would need a total knee arthroplasty at some point in the future, but that he
“neither implemented restrictions for Plaintiff nor indicated what activities Plaintiff could ‘still do
despite the impairment.’” [Doc. 25 at 23 (citing 20 C.F.R. § 404.1527(a)(1))]. Therefore, the
Commissioner asserts that these comments do not constitute a medical opinion “and therefore, the
ALJ was not required to articulate how this evidence was considered in the decision.” [Id.].
A medical opinion is defined in 20 C.F.R. § 404.1527(a)(2) as one “that reflects[s]
judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.” In considering a claim of disability, the ALJ generally must give the opinion of the
claimant’s treating physician “controlling weight.” 20 C.F.R. §§ 404.1527(c); 416.927(c)(2). 6
However, a treating physician’s opinion as to the nature and severity of an impairment must be
given “controlling weight” only if it is (1) well-supported by medically acceptable clinical and
The treating physician rule has been abrogated as to claims filed on or after March 27,
2017. See 20 C.F.R. §§ 404.1520c; 416.920c (“We will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) . . . including those from your
medical sources.”); see also Revisions to Rules Regarding the Evaluation of Medical Evidence, 82
Fed. Reg. 5844-01, 2017 WL 168819, at *5852–57 (Jan. 18, 2017). The new regulations eliminate
the term “treating source,” as well as what is customarily known as the treating physician rule. As
Plaintiff’s application was filed before March 27, 2017, the treating physician rule applies. See
id. §§ 404.1527; 416.927.
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laboratory diagnostic techniques and (2) is not inconsistent with the other substantial evidence in
the case record. 20 C.F.R. §§ 404.1527(c); 416.927(c)(2). When an opinion does not garner
controlling weight, the appropriate weight to be given to the opinion will be determined based
upon the length of treatment, frequency of examinations, nature and extent of the treatment
relationship, amount of relevant evidence that supports the opinion, the opinion’s consistency with
the record as a whole, the specialization of the source, and other factors which tend to support or
contradict the opinion. Id.
The ALJ is not required to explain how he considered each of these factors but must
nonetheless give “good reasons” for giving a treating physician’s opinion less than controlling
weight. Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011); see also Morr v.
Comm’r of Soc. Sec., 616 F. App’x 210, 211 (6th Cir. 2015) (holding “good reasons” must be
provided “that are sufficiently specific to make clear to any subsequent reviewers the weight given
to the treating physician’s opinion and the reasons for that weight”).
Ultimately, the Court agrees with the Commissioner that Dr. Johnston’s treatment note
does not constitute a medical opinion under the applicable regulations, and thus the ALJ was not
required to explain the weight it was afforded. 20 C.F.R. § 404.1527(a)(2); see, e.g., Dunlap v.
Comm'r of Soc. Sec., 509 F. App'x 472, 476 (6th Cir. 2012) (finding a doctor's “report
cannot constitute a medical opinion, because it consists primarily of a restatement, often verbatim,
of the underlying evidence contained in [claimant's] medical records—evidence that the
administrative law judge fully considered and set out in his decision.”); Hope v. Saul, No. 3:18CV-121-HBG, 2019 WL 4451204, at *8 (E.D. Tenn. Sept. 17, 2019). “The law and the Social
Security regulations recognize a difference between a treating physician's treatment notes or
comments, and a treating physician's ‘medical opinion.’” Calloway v. Comm'r of Soc. Sec., 2016
Case 1:20-cv-00117-DCP Document 29 Filed 09/07/21 Page 22 of 23 PageID #: 1254
WL 1165948, at *11 (E.D. Mich. Mar. 1, 2016), report and recommendation adopted by, 2016
WL 1161529 (E.D. Mich. Mar. 23, 2016) (citing 20 C.F.R. § 404.1527(a)(2)); Bass v. McMahon,
499 F.3d 506, 510 (6th Cir. 2007) (finding that a doctor’s observations do not qualify as “medical
opinions” under the Social Security regulations, and “without more, are not the type of information
from a treating physician which will be provided great weight under 20 C.F.R. § 404.1513(b)”)).
Therefore, the ALJ was not required to explain any weight to this treatment note.
Additionally, Plaintiff fails to point to subsequent evidence in the medical record echoing Dr.
Johnston’s statement that she would require another total knee arthroplasty. In the disability
decision, the ALJ noted that Plaintiff underwent bilateral partial knee replacement and considered
the effect of any postural limitations. [Tr. 19]. As such, Plaintiff’s argument that the ALJ erred
by failing to consider the specific treatment note from her treating physician, Dr. Johnston, does
not constitute a basis for remand.
Based on the foregoing, Plaintiff’s Motion for Judgment on the Pleadings [Doc. 22] will
be DENIED, Plaintiff’s Motion for Leave to File a Reply Brief [Doc. 26] will be DENIED AS
MOOT, and the Commissioner’s Motion for Summary Judgment [Doc. 24] will be GRANTED.
The decision of the Commissioner will be AFFIRMED. The Clerk of Court will be DIRECTED
to close this case.
Debra C. Poplin
United States Magistrate Judge
Case 1:20-cv-00117-DCP Document 29 Filed 09/07/21 Page 23 of 23 PageID #: 1255
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