Reeves v. Social Security Administration, Commissioner of (TV2)

Filing 24

MEMORANDUM, OPINION AND ORDER: Having reviewed the administrative record and the parties' briefs, the Commissioner's Motion for Summary Judgment [Doc. 22] will be GRANTED and the decision of the ALJ is AFFIRMED. Judgment will be entered in favor of the Commissioner.Signed by Magistrate Judge Christopher H Steger on 9/25/24. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
LISA ANN HICKS REEVES,
Plaintiff,
v.
MARTIN O’MALLEY,
Commissioner of Social Security
Administration,
Defendant.

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Case No: 1:22-cv-00267
Judge Christopher H. Steger

MEMORANDUM OPINION AND ORDER
I.

Introduction
Plaintiff Lisa Ann Hicks Reeves seeks judicial review under § 205(g) of the Social Security

Act ("Act"), 42 U.S.C. § 405(g), from her denial of disability insurance benefits by the
Commissioner of the Social Security Administration ("Commissioner") under Title II of the Act,
42 U.S.C. §§ 401-34. [See Doc. 1]. The parties consented to the entry of final judgment by the
undersigned United States Magistrate Judge, under 28 U.S.C. § 636(c), with an appeal to the Court
of Appeals for the Sixth Circuit. [Doc. 18].
For the reasons that follow, the Commissioner's Motion for Summary Judgment [Doc. 22]
will be GRANTED and judgment will be entered AFFIRMING the Commissioner's decision.
II.

Procedural History
Plaintiff's disability claim was remanded to Administrative Law Judge Kevin T. Alexander

("ALJ") from the Appeals Council pursuant to a remand from the United States District Court for
the Eastern District of Arkansas. (Tr. 1105, 1123). Plaintiff alleges disability since February 19,
2018. (Tr. 1105). The ALJ conducted a telephone hearing (due to the COVID-19 Pandemic) on
January 19, 2022, that included Plaintiff's attorney. Id. Plaintiff testified at the hearing, as did a

vocational expert ("VE"). (Tr. 1135-1153). The ALJ then rendered his decision on August 4, 2022,
finding that Plaintiff was not under a "disability" as defined by the Act. (Tr. 1123). Plaintiff then
filed her Complaint [Doc. 1] on October 24, 2022, seeking judicial review of the Commissioner's
final decision under § 405(g).
III.

Findings by the ALJ
The ALJ made the following findings concerning Plaintiff's application for benefits:
1. The claimant meets the insured status requirements of the Social Security
Act through December 31, 2023.
2. The claimant has not engaged in substantial gainful activity since February
19, 2018, the alleged onset date (20 C.F.R. § 404.1571 et seq.).
3. The claimant has the following severe impairments: mitral valve prolapse,
aortic aneurysm status post repair, hypertension, cervical and lumbar
degenerative disc disease, left hip fracture status post repair, major
depressive disorder, attention deficit hyperactivity disorder, and adjustment
disorder (20 C.F.R. § 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526).
5. After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light exertion
work as defined in the Dictionary of Occupational Titles (DOT) with these
additional restrictions and limits: no temperature extremes of heat or cold
exposure; no concentrated fumes, odors, or gas exposure; no climbing of
ladders, ropes, or scaffolds; and no lower extremity foot control operation
duties required; simple routine repetitive task jobs with supervision that
would be simple, direct, and concrete; reasoning level not to exceed 2; and
no more than occasional changes to workplace setting required (20 C.F.R. §
404.1567(b)).
6. The claimant is unable to perform any past relevant work (20 C.F.R. §
404.1565).
7. The claimant was born on June 30, 1969, 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 and continues to be an individual closely
approaching advanced age (20 C.F.R. 404.1563).
8. The claimant has at least a high school education (20 C.F.R. 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 82-41 and 20 C.F.R. Pt. 404, Subpt. P, App.
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 C.F.R. §§ 404.1569,
404.1569(a)).
(Tr. at 1108-1123).
IV.

Standard of Review
This case involves an application for disability insurance benefits ("DIB"). An individual

qualifies for DIB if she: (1) is insured for DIB; (2) has not reached the age of retirement; (3) has
filed an application for DIB; and (4) is disabled. 42 U.S.C. § 423(a)(1).
The determination of disability is an administrative decision. To establish a disability, a
plaintiff must show that she is unable to engage in any substantial gainful activity due to the
existence of a medically determinable physical or mental impairment that can be expected to result
in death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. § 423(d)(1)(A); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
The Commissioner employs a five-step sequential evaluation to determine whether an adult
claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The following five issues are addressed in
order: (1) if a claimant is engaging in substantial gainful activity, she is not disabled; (2) if a
claimant does not have a severe impairment, she is not disabled; (3) if the claimant's impairment
meets or equals a listed impairment, she is disabled; (4) if the claimant is capable of returning to

work she has done in the past, she is not disabled; (5) if the claimant can do other work that exists
in significant numbers in the regional or the national economy, she is not disabled. Id. If, at one
step, an ALJ makes a dispositive finding, the inquiry ends without proceeding to the next. 20
C.F.R. §§ 404.1520; 416.920; Skinner v. Sec'y of Health & Human Servs., 902 F.2d 447, 449-50
(6th Cir. 1990). Once, however, the claimant makes a prima facie case that she cannot return to
her former occupation, then the burden shifts to the Commissioner to show that there is work in
the national economy that the claimant can perform considering her age, education, and work
experience. Richardson v. Sec'y of Health and Human Servs., 735 F.2d 962, 964 (6th Cir. 1984);
Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).
The standard of judicial review is whether substantial evidence supports the
Commissioner's findings and whether the Commissioner made any legal errors in the process of
reaching the decision. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (adopting and defining
substantial evidence standard in the context of Social Security cases); Landsaw v. Sec'y of Health
and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Even if there is contrary evidence, the
Commissioner's findings must be affirmed if evidence exists to support the Commissioner's
findings. Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). Courts may not reweigh the
evidence and substitute their judgment for that of the Commissioner because substantial evidence
exists to support a different conclusion. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)
(citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Sec'y, Health and Human
Servs., 790 F.2d 450 n.4 (6th Cir. 1986). The substantial evidence standard allows considerable
latitude to administrative decision-makers. It presupposes a "zone of choice" within which
decision-makers can go either way without court interference. Felisky, 35 F.3d at 1035; Crisp, 790
F.2d 450 n.4.

Courts may consider any evidence in the record, regardless of whether the ALJ cited to it.
See Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). But courts may not consider
evidence that was not before the ALJ. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Courts
are also not obligated 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. August 18, 2009) (stating that
assignments of error not made by claimant were waived). Further, "issues [that] are 'adverted to in
a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived,'" Kennedy v. Comm'r of Soc. Sec., 87 F. App'x 464, 466 (6th Cir. 2003) (quoting United
States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).
V.

Analysis
Plaintiff contends the ALJ erred in determining Plaintiff's Residual Functional Capacity

("RFC") because he: (1) erred in evaluating Plaintiff's subjective complaints; (2) erred in
evaluating Plaintiff's non-exertional impairments; and (3) did not present a hypothetical to the VE
that properly accounted for Plaintiff's limitations. The Court will address these arguments in turn.
A.

Plaintiff's Subjective Complaints

Plaintiff's specific argument regarding the ALJ's alleged error in evaluating Plaintiff's
subjective complaints is somewhat unclear. Though this section of Plaintiff's brief spans ten pages,
only three paragraphs 1 seem to offer actual argument. The rest of the section is largely devoted to
a selective recounting of the medical record. While the details of the medical record are certainly
germane to analyzing Plaintiff's subjective complaints, the Court cannot readily discern what
Plaintiff is hoping the Court will do with the highlighted information from the medical record

1

Totaling about one page in length.

without clear argumentation.
Plaintiff's specific allegations found in the three argumentative paragraphs are more
straightforward. First, Plaintiff claims that the ALJ erred in assessing Plaintiff's credibility.
Plaintiff cites Schultz v. Astrue, 479 F.3d 979 (8th Cir. 2007), for the proposition that the ALJ did
not fulfill the credibility assessment requirements of Polanski v. Hecker, 739 F.2d 1320 (8th Cir.
1984). [Doc. 17 at 9-10]. But "[t]he term 'credibility' is no longer a part of the disability lexicon."
Snyder v. Comm'r of Soc. Sec., No. 22-5948, 2023 WL 3673265, at *5 (6th Cir. May 26, 2023).
Since March 16, 2016, credibility assessments have been replaced by a new framework evaluating
"the intensity and persistence of an individual's symptoms so we can determine how symptoms
limit ability to perform work-related activities." Soc. Sec. Ruling 16-3p: Titles II & XVI:
Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Mar. 16, 2016). The ALJ
properly employed the new framework in his opinion. Thus, the ALJ did not err in foregoing the
alleged credibility assessment requirements.
Second, Plaintiff complains that, in making his credibility determination, 2 "[t]he ALJ
summarized Plaintiff's medical records and discounted Plaintiff's subjective complaints because
they were not supported by the objective medical records." Plaintiff then quotes a paragraph from
the ALJ's opinion which summarizes a few medical records and states that "there is no objective
medical evidence from which to conclude the claimant has required any more than intermittent
evaluation and treatment at most." [Doc. 17 at 10 quoting (Tr. 1119)].
However, the quoted paragraph does not support Plaintiff's contention. In the roughly six
pages preceding the quoted paragraph, the ALJ spent 21 paragraphs carefully and thoroughly

Though the Plaintiff uses the phrase "credibility determination," the Court accepts that the substance of Plaintiff's
argument is under the analogous provision of the new framework described in SSR 16-3p and employed by the
ALJ—i.e., evaluation of the intensity, persistence, and limiting effects of Plaintiff's symptoms to determine the
extent to which they limit Plaintiff's work-related activities.

2

discussing Plaintiff's alleged disabilities, hearing testimony, and medical record. (See Tr. 111319). The ALJ exhaustively detailed evidence of Plaintiff's ailments and treatment including cardiac
impairments, orthopedic impairments, neurological examinations, pain clinic visits, and mental
impairments. Id. Only then did the ALJ open the quoted paragraph by stating, "In regard to any
other alleged disabling conditions and/or symptoms as alleged by the claimant, there is no
objective medical evidence from which to conclude the claimant has required any more than
intermittent evaluation and treatment at most." (Tr. 1119). The ALJ then summarized some
medical records from conditions that illustrated treatment of such "other disabling conditions."
Plaintiff's brief argument and citation to the quoted paragraph make it seem as though the
ALJ was supporting his treatment of all of Plaintiff's disabling conditions and symptoms through
the quoted paragraph. This would be a troublingly brief and selective discussion of Plaintiff's
ailments and treatment. In fact, the ALJ was merely addressing the small number of various
conditions and symptoms that fall outside of those impairments meticulously addressed in the 21
preceding paragraphs. The ALJ did discount Plaintiff's subjective complaints based on the
objective medical records, but he did so based on a lengthy, thorough, and detailed analysis of
Plaintiff's entire medical record.
Thus, the ALJ did not err as alleged in evaluating Plaintiff's subjective complaints. Rather,
he properly employed the framework required by SSR 16-3p and his conclusions regarding
Plaintiff's subjective complaints are supported by substantial evidence.
B.

Plaintiff's Non-Exertional Impairments

Plaintiff claims "[t]he ALJ erred by failing to include Plaintiff's non-exertional limitations
in his RFC determination." [Doc. 17 at 13]. Non-exertional limitations are restrictions that affect
"your ability to meet the demands of jobs other than the strength demands." 20 C.F.R. § 404.1569a.

Examples include difficulty: (1) functioning due to nervousness, anxiety, or depression; (2)
maintaining attention or concentration; (3) understanding or remembering detailed instructions;
and (4) seeing or hearing. 20 C.F.R. § 404.1569a(c).
Plaintiff specifically objects to the ALJ's conclusion that Plaintiff could perform light work.
Id. After citing to specific physical and mental conditions, Plaintiff states that "[t]he documented
problems in Plaintiff's neck and back along with her balance problems and fatigue put light work
beyond Plaintiff's ability." Id. at 14. Plaintiff's argument is simply a disagreement with the level of
the ALJ's RFC. There is no question that the evidence in the record could support a more restrictive
RFC. But that is not the requisite standard to show error.
Courts may not reweigh the evidence and substitute their judgment for that of the
Commissioner because substantial evidence exists to support a different conclusion. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir.
1986)); Crisp v. Sec'y, Health and Human Servs., 790 F.2d 450 n.4 (6th Cir. 1986). The substantial
evidence standard allows considerable latitude to administrative decision-makers. It presupposes
a "zone of choice" within which decision-makers can go either way without court interference.
Felisky, 35 F.3d at 1035; Crisp, 790 F.2d 450 n.4.
Here, the ALJ extensively discussed Plaintiff's various mental and physical ailments and
treatment—including her neck and back problems, balance, and fatigue. (See Tr. 1113-21). The
ALJ also thoroughly discussed the various medical opinions and how he evaluated them. Plaintiff
points to no error of law in how the ALJ arrived at his conclusion, she merely disagrees with the
conclusion. However, the Court finds that the ALJ's RFC is reasonable based upon the evidence
in the record and his comprehensive analysis thereof.

Therefore, the ALJ did not err in his RFC determination because his conclusion is
supported by substantial evidence.
C.

Hypothetical to the VE

Plaintiff claims that the ALJ's hypothetical to the VE "does not include so many of
Plaintiff's limitations." [Doc. 17 at 14]. Plaintiff further states that "[a] reasonable mind cannot
accept that this Plaintiff could perform light work given the combination of all of her impairments."
Id. at 15.
Again, Plaintiff's argument is simply a disagreement with the ALJ's conclusion. The ALJ's
hypothetical mirrors his RFC. As noted above, the ALJ's RFC is supported by substantial evidence.
By extension, his hypothetical to the VE—which mirrors that RFC—is supported by substantial
evidence.
D.

Other Arguments

Though not as clearly previewed in her brief as are her other arguments, Plaintiff touches
on two other issues. First, Plaintiff complains that the ALJ found three moderate limitations and
one mild limitation in analyzing the paragraph B criteria. [See Doc. 17 at 15]. Plaintiff claims that
her "records, testing, and treating provider's medical opinions show she has marked limitations" in
at least three of the broad areas of mental functioning. Id.
Plaintiff is once again simply disagreeing with the ALJ's conclusion. The ALJ extensively
supported his conclusions with a lengthy and detailed paragraph devoted to each of the four broad
areas of functioning. (Tr. 1110-12). His rationale and supporting evidence are sound. Though
evidence in the record could support different conclusions, his determinations in the four broad
areas are supported by substantial evidence.

Finally, Plaintiff complains that "[t]he ALJ did not order a new mental consultative
examination despite records showing Plaintiff is not improving." [Doc. 17 at 16]. Specifically,
Plaintiff notes that Plaintiff's disability claim "was remanded to evaluate Plaintiff's mental
impairments." Id. Thus, "[i]t would have been appropriate to order a mental consultative to perform
the tests Benjamin Silber, Ph.D., recommended when he saw Plaintiff in 2020." Id.
Plaintiff is certainly correct that the ALJ could have ordered such an examination.
Plaintiff's case was remanded with several directives to the ALJ. (See Tr. 1194-95). Among those
directives was that additional evidence "may include, if warranted and available, consultative
examinations and medical source statements." (Tr. 1194 (emphasis added)). The word "may"
constitutes a permissive, not mandatory, directive. Additionally, Plaintiff points to no authority
supporting her claim that not ordering an examination to perform the recommended tests was error.
Thus, the Court is unconvinced that the ALJ legally should have ordered the examination.
Therefore, the ALJ did not err by not ordering a new mental consultative examination.
VI.

Conclusion
Having reviewed the administrative record and the parties' briefs, the Commissioner's

Motion for Summary Judgment [Doc. 22] will be GRANTED and the decision of the ALJ is
AFFIRMED. Judgment will be entered in favor of the Commissioner.
SO ORDERED.
/s/ Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE