Denton v. Social Security Administration, Commissioner of

Filing 22

MEMORANDUM. An Order shall enter.Signed by District Judge Curtis L Collier on 4/5/12. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
TOMMY J. DENTON,

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

Case No. 2:10-CV-249
Collier / Carter

MEMORANDUM
Plaintiff Tommy J. Denton (“Plaintiff”) brought this action on November 17, 2010, seeking
judicial review of the final decision of the Commissioner of Social Security (“Defendant”) denying
Plaintiff a period of disability and disability insurance benefits under 42 U.S.C. §§ 416(i) and 423.
The Court referred the matter to United States Magistrate Judge William B. Mitchell Carter,
pursuant to 28 U.S.C. § 636(b) and in accordance with Fed. R. Civ. P. 72(b) for a report and
recommendation (“R&R”) regarding the disposition of Plaintiff’s motion for summary judgment
(Court File No. 11) and Defendant’s motion for summary judgment (Court File No. 17). The
magistrate judge filed an R&R (Court File No. 19) recommending Plaintiff’s motion for summary
judgment be denied (Court File No. 11), Defendant’s motion for summary judgment be granted
(Court File No. 17), and the Commissioner’s decision be affirmed. Plaintiff timely filed an objection
to the R&R (Court File No. 20). For the following reasons, the Court ACCEPTS and ADOPTS the
magistrate judge’s R&R (Court File No. 19).

I.

STANDARD OF REVIEW
This Court must conduct a de novo review of those portions of the R&R to which objection

is made and may accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. 28 U.S.C. § 636(b)(1). The Court’s standard of review is essentially the same as
the magistrate judge’s – review is limited to determining if the Administrative Law Judge’s (“ALJ”)
findings are supported by substantial evidence and if proper legal standards were used. 42 U.S.C.
§ 405(g); Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (per
curiam). “Substantial evidence” means evidence a reasonable mind might accept to support the
conclusion at issue. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is greater
than a scintilla but less than a preponderance. Stanley v. Sec’y of Health & Human Servs., 39 F.3d
115, 117 (6th Cir. 1994); Brainard, 889 F.2d at 681.
If supported by substantial evidence, the Court must affirm the ALJ’s findings, even if
substantial evidence also supports the opposite conclusion. Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 475 (6th Cir. 2003). The substantial evidence standard presupposes there is a zone of choice
within which the decision makers can go either way, without interference by the courts. Felisky v.
Bowen, 35 F.3d 1027 (6th Cir. 1994). The ALJ need not discuss every aspect of the record or explain
every finding at length but must “articulate with specificity reasons for the findings and conclusions
that he or she makes” to facilitate meaningful judicial review. Bailey v. Comm’r of Soc. Sec., 1999
WL 96920, at *4 (6th Cir. Feb. 2, 1999). If the ALJ’s decision was not supported by substantial
evidence, the Court should typically reverse and remand the case for further administrative
proceedings. However, when “the proof of disability is overwhelming or . . . the proof of disability
is strong and evidence to the contrary is lacking,” the court may reverse the decision and award
benefits. Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).

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II.

DISCUSSION1
Plaintiff objects to the magistrate judge’s R&R for several reasons. First, Plaintiff claims the

ALJ erred in rejecting the opinion of Dr. Purswani. Second, Plaintiff argues the ALJ relied upon
vocational expert (“VE”) testimony that conflicts with the Dictionary of Occupational Titles
(“DOT”). Finally, Plaintiff asserts the ALJ failed to give proper weight to the opinion of Dr.
Salamone and made a credibility determination that was not based upon an evaluation of all relevant
evidence. Given that the magistrate judge affirmed the ALJ’s decision in spite of these alleged
errors, Plaintiff objects to the R&R. The Court will address each of Plaintiff’s arguments in turn.
A.

Dr. Purswani’s Opinion

Plaintiff contends the ALJ improperly rejected the opinion of consultative medical examiner
Krish Purswani, M.D., and claims the magistrate judge inadequately addressed this issue in the
R&R. However, this Court is in agreement with the conclusions reached by the magistrate judge for
the following reasons. First and foremost, the magistrate judge properly concluded that the ALJ’s
decision was supported by substantial evidence, which is the primary lens through which the ALJ’s
decision should be reviewed. In the RFC determination section, the ALJ began by discussing the
evidence considered and the amount of weight given to that evidence. The first paragraph reads as
follows:
In making this finding, the undersigned has considered all opinion evidence in
accordance with the requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 966p, and 06-3p. The undersigned has considered the objective medical findings of Dr.
Chapman, Dr. Austin, Dr. Platt, Dr. Purswani and the treating emergency room
physicians in finding that the claimant can perform light work that allows frequent
postural changes. Although Dr. Purswani limited the claimant to sedentary work, this

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Because Plaintiff does not object to the magistrate judge’s basic recitation of the facts, the
Court will not repeat them here.
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opinion is inconsistent with the overall medical evidence of record, and is not
consistent with Dr. Purswani’s own findings on examination. The undersigned has
also considered the opinions of the state-agency medical consultants in August 2007
and April 2008, and give[s] significant weight to same. Such opinions are consistent
with the medical evidence of record. There are no medical assessments indicating
total and permanent disability. To the contrary, the record as a whole does not negate
the ability for light work that allows frequent postural changes.
(Tr. 28).
Plaintiff objects because he believes the ALJ did not give Dr. Purswani’s opinion sufficient
weight. Plaintiff is correct to note that the Code of Federal Regulations states, “[g]enerally, we give
more weight to the opinion of a source who has examined you than to an opinion of a source who
has not examined you.” 20 C.F.R. § 404.1527(d)(1). Here, although Dr. Purswani did not have an
ongoing treatment relationship with Plaintiff, he did examine Plaintiff on one occasion, wherein the
state agency physicians did not. Based on these facts alone, Dr. Purswani’s opinion would normally
receive more weight than the state agency physicians’ opinion.2 However, the ALJ clearly explained
why Dr. Purswani’s opinion was treated differently in this circumstance. After reviewing all the
medical evidence in the record, the ALJ concluded Dr. Purswani’s report was inconsistent internally
as well as with the record as a whole. The ALJ has a responsibility to consider an opinion’s
consistency with the record, and “[g]enerally, the more consistent an opinion is with the record as
a whole, the more weight [he] will give to that opinion.” 20 C.F.R. § 404.1527(d)(4). The ALJ
provided a thorough summarization of Dr. Purswani’s medical findings as well as all other medical

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Notably, although an examining physician’s opinion generally receives more weight than
a nonexamining source’s opinion, it is distinguishable from the opinion of a “treating source.” A
treating source’s opinion generally receives controlling weight because a treating source is most
likely to be able to provide a “detailed, longitudinal picture of [the claimant’s] medical
impairment(s), among other things. 20 C.F.R. § 404.1527(d)(2). This is a perspective that Dr.
Purswani lacked given that he only performed one examination of Plaintiff and did not have an
ongoing treatment relationship. Therefore, his opinion was not entitled to controlling weight.
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evidence in the record, which highlighted some of those inconsistencies (Tr. 24-28), and the ALJ
ultimately concluded he could not adopt Dr. Purswani’s opinion limiting Plaintiff to sedentary work
in light of the record as a whole.
With respect to Plaintiff’s concern that the ALJ improperly gave the state agency examiners’
opinion “significant weight,” the amount of weight given to a nonexamining source will depend
upon “the degree to which they provide supporting explanations for their opinions. . . . [this
includes] the degree to which these opinions consider all of the pertinent evidence in your claim,
including opinions of treating and examining sources.” 20 C.F.R. § 404.1527(d)(3). Again, the ALJ
clearly explained his rationale for the weight given to the state agency physicians’ opinions. The
state agency physicians both reviewed Plaintiff’s records, one reviewing records dating back to 2000
and the other 2005. They also both concluded Plaintiff could perform light work and distinguished
Dr. Purswani’s opinion as being inconsistent with the overall medical evidence (Tr. 27, 454-61, 53744). The ALJ found their opinions to be consistent with his overall review of the record, and
therefore accorded their opinions significant weight, which is in accordance with the applicable
regulations.
The ALJ’s review of the record was extensive, and the decision includes a thorough
description of Plaintiff’s medical history (Tr. 24-28). The most relevant considerations are included
in the actual RFC determination. Plaintiff contends the ALJ failed to discuss the opinion from a
functional consultative examination (“FCE”) as well as specific aspects of Plaintiff’s functional
limitations. However, the ALJ included the findings and opinion of the FCE in his opinion (Tr. 26),
and this therefore would have been among his considerations when he reviewed the record. The
same is true for the specific findings of Dr. Purswani and other examinations in the record. The ALJ

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is not required to discuss every piece of evidence when there is substantial evidence to reach the
opposite conclusion. “While it might be ideal for an ALJ to articulate his reasons for crediting or
discrediting each . . . opinion, it is well settled that ‘an ALJ can consider all the evidence without
directly addressing in his written decision every piece of evidence submitted by a party.’” Kornecky
v. Comm’r of Soc. Sec., 2006 WL 305648, at *8-9 (6th Cir. 2006) (citing Loral Def. Sys.-Akron v.
N.L.R.B., 200 F.3d 436, 453 (6th Cir.1999)). Here, viewing the record “as a whole,” the ALJ
concluded Plaintiff was capable of performing “light work,” and this Court agrees with the
magistrate judge’s conclusion that the ALJ’s decision was supported by substantial evidence.
B.

Vocational Expert’s Testimony

Plaintiff contends the magistrate judge failed to acknowledge that the ALJ relied upon VE
testimony that conflicted with the DOT. Specifically, he notes the ALJ concluded Plaintiff could
perform skilled work and relied on testimony from the VE for sedentary positions that were
improperly identified as “unskilled” (Court File No. 20). However, as a preliminary matter, the
magistrate judge properly noted that the ALJ’s RFC determination was that Plaintiff would be
limited to a range of “light work,” and that conclusion is supported by substantial evidence in the
record as discussed earlier. Moreover, the RFC determination did not limit Plaintiff to unskilled
jobs. The VE testified about several light jobs taking into account Plaintiff’s profile and the RFC
determination, and the ALJ incorporated this information into his decision (Tr. 30-31, 54-55).
Among the positions listed by the VE were those of cashier, security guard, food prep worker, food
service worker, dishwasher, and janitor (id.). Plaintiff has not disputed this part of the VE’s
testimony nor the ALJ’s conclusion that these would be appropriate examples of light work taking
into account Plaintiff’s need for frequent postural changes.

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Instead, Plaintiff contends the ALJ relied on inaccurate testimony provided by the VE with
respect to examples of sedentary work that allow frequent postural changes. Plaintiff claims the jobs
cited by the VE are all either skilled or semi-skilled despite the VE’s representation that the
positions were unskilled. To the extent the VE’s testimony is inaccurate, however, this Court agrees
with the magistrate judge’s conclusion that the ALJ satisfied his responsibilities under SSR 00-4p.
The ALJ inquired at the hearing as to whether the VE’s testimony was consistent with the DOT, and
the VE answered in the affirmative (Tr. 56); Plaintiff also did not bring the disputed issue to the
attention of the ALJ. See Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006)
(“[T]here was a conflict between the vocational expert’s testimony and the SVPs of two of the
positions . . . in the DOT. . . . Nothing in SSR 00-4p places an affirmative duty on the ALJ to
conduct an independent investigation into the testimony of witnesses to determine if they are correct.
. . . Because Martin did not bring the conflict to the attention of the ALJ, the ALJ did not need to
explain how the conflict was resolved.”). Plaintiff suggests Martin can be distinguished because, in
Martin, not all the jobs conflicted with the DOT and there was at least one job that Plaintiff could
perform. However, for that very reason, Martin is applicable. Here, even if the sedentary positions
noted by the VE conflict with the DOT, the ALJ still could have reasonably found that Plaintiff
could perform the light work positions described by the VE because the ALJ’s RFC determination
was that Plaintiff could perform certain jobs within the range of light work. Plaintiff did not object
to the VE’s testimony regarding light work or the ALJ’s inclusion of those positions in the decision.
Accordingly, this Court agrees with the magistrate judge’s conclusions regarding the VE’s
testimony.
C.

Plaintiff’s Alleged Mental Impairments and Allegations of Pain

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Plaintiff claims the magistrate judge failed to address the fact that the ALJ discounted Dr.
Salamone’s findings and expertise and gave improper weight to the opinions of the state agency
medical consultants. This Court agrees, however, with the magistrate judge’s conclusion that there
is substantial evidence in the record to support the ALJ’s decision regarding Plaintiff’s mental
condition. The ALJ clearly considered Dr. Salamone’s findings and opinion when he reached his
decision that Plaintiff’s mental condition was non-severe (Tr. 24-25, 419-21). Of particular note, the
ALJ considered Dr. Salamone’s diagnosis that Plaintiff had “depressive disorder, NOS and a panic
disorder with agoraphobia” (id.). However, as noted by the magistrate judge, the mere diagnosis of
a particular condition does not indicate its severity. Foster v. Bowen, 853 F.2d 483, 489 (6th Cir.
1988). Moreover, Dr. Salamone also observed in his diagnosis that Plaintiff’s results on the
psychometrics revealed a negative response bias. This was taken into consideration along with all
the other evidence in the record in the ALJ’s determination regarding Plaintiff’s mental condition
(Tr. 25).
Plaintiff also argues the ALJ gave the state agency physician’s findings too much weight
given that he was a nonexamining source. However, as explained earlier, the ALJ must consider
whether the evidence in the record is “consistent,” and the amount of weight that he may gave to a
nonexamining source may differ depending upon factors such as “the degree to which they provide
supporting explanations for their opinions. . . . [this includes] the degree to which these opinions
consider all of the pertinent evidence in your claim, including opinions of treating and examining
sources.” 20 C.F.R. § 404.1527(d)(3). Here, Dr. Welch considered Plaintiff’s mental health and
pain-related records dating back to 2005, as well as Plaintiff’s own testimony about his activities
(Tr. 435). After considering the entire record, the ALJ concluded Dr. Welch’s opinion was

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consistent with the other information in the record. Therefore, the ALJ properly exercised his
discretion in giving “significant weight” to the opinion of the state agency medical consultant.
Ultimately, because this Court agrees with the magistrate judge’s conclusion that the ALJ’s decision
was supported by substantial evidence, Plaintiff’s argument lacks merit.
On a related note, Plaintiff contends the magistrate judge summarily incorporated the ALJ’s
findings in his decision, which improperly focused on Plaintiff’s negative response bias. However,
“[c]redibility determinations are entitled to considerable deference.” Howard v. Comm’r of Soc. Sec.,
276 F.3d 235, 242 (6th Cir. 2002) (citing Lee v. Sullivan, 988 F.2d 789, 793 (7th Cir.1993)). Here,
the ALJ enumerated his reasons for discounting Plaintiff’s credibility in a lengthy discussion where
he acknowledges both Dr. Salamone and Dr. Platt’s observations, along with other evidence in the
record (Tr. 28-29). Concerns that Plaintiff displayed symptom magnification, among other things,
was particularly relevant in the ALJ’s assessment of Plaintiff’s symptoms, and in light of the
evidence in the record, this was not an improper or unsubstantiated consideration. Hence, the
magistrate judge properly concluded that the ALJ gave adequate consideration to Plaintiff’s pain
complaints in his decision.

III.

CONCLUSION
For the foregoing reasons, the Court will ACCEPT and ADOPT the magistrate judge’s

R&R (Court File No. 19). The Court will DENY Plaintiff’s motion for summary judgment (Court
File No. 11), GRANT Defendant’s motion for summary judgment (Court File No. 17), and
AFFIRM the Commissioner’s decision.
An Order shall enter.

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/s/
CURTIS L. COLLIER
CHIEF UNITED STATES DISTRICT JUDGE

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