Shipley v. Social Security Administration, Commissioner of (PLR2)
MEMORANDUM OPINION AND ORDER: Based upon the foregoing, Plaintif's motion for judgment on the pleadings [Doc. 13] is DENIED and the Commissioner's See Memorandum Opinion and Order for details. Signed by Magistrate Judge Clifton L Corker on 8/25/2017. (JCK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
BILLY K SHIPLEY,
COMMISSIONER OF SOCIAL
MEMORANDUM OPINION AND ORDER
This matter is before the United States Magistrate Judge with consent of the parties and by
order of reference [Doc. 12] for disposition and entry of a final judgment. Plaintiff’s application
for Disability Insurance Benefits under the Social Security Act was administratively denied
following a hearing before an Administrative Law Judge (“ALJ”). This is an action for judicial
review of the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g). Plaintiff filed a
Motion for Judgment on the Pleadings [Doc. 13] and Defendant filed a Motion for Summary
Judgment [Doc. 15].
STANDARD OF REVIEW
The scope of review of the Commissioner’s findings is narrow. The Court is confined to
determining (1) whether substantial evidence supported the factual findings of the ALJ and (2)
whether the Commissioner conformed with the relevant legal standards. 42 U.S.C. § 405(g); see
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). “Substantial
evidence” is defined as evidence that is more than a mere scintilla and is such relevant evidence
as a reasonable mind might accept as adequate to support the challenged conclusion. Richardson
v. Perales, 402 U.S. 389, 401 (1971). It must be enough to justify, if the trial were to a jury, a
refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury.
Lemaster v. Sec’y of Health & Humans Servs., 802 F.2d 839, 841 (6th Cir. 1986). The Court may
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). Even if the reviewing court were to resolve
the factual issues differently, the Commissioner’s decision must stand if supported by substantial
evidence. Listenbee v. Sec’y of Health & Human Services, 846 F.2d 345, 349 (6th Cir. 1988).
However, a decision supported by substantial evidence “will not be upheld where the [Social
Security Administration] fails to follow its own regulations and where that error prejudices a
claimant on the merits or deprives the claimant of a substantial right.” Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007).
A claimant must be under a “disability” as defined by the Social Security Act to be eligible
for benefits. Within the statutory meaning, a “disability” includes physical and/or mental
impairments that are both “medically determinable” and severe enough to prevent the claimant
from (1) performing his past job and (2) engaging in “substantial gainful activity” that is available
in the regional or national economies. 42 U.S.C. § 423(a)(1)(E).
The regulations require a five-step sequential evaluation process for disability
determinations. 20 C.F.R. §§ 404.1520(a)(4). A dispositive finding at any step ends an ALJ's
review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The complete review poses five
Has the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant's severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner's Listing
of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's [Residual Functional Capacity], can he or she
perform his or her past relevant work?
Assuming the claimant can no longer perform his or her past relevant work
–– and also considering the claimant's age, education, past work experience,
and RFC –– do significant numbers of other jobs exist in the national
economy which the claimant can perform?
20 C.F.R. § 404.1520(a)(4); 416.920(a)(4). “The claimant has the ultimate burden to establish an
entitlement to benefits by proving the existence of a disability as defined in 42 U.S.C. § 423(d),”
while the Commissioner has the burden to establish the claimant’s ability to work under step five.
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
RELEVANT FACTS AND PROCEDURAL OVERVIEW
This is Plainitff’s Billy Shipley’s (“Shipley’s”) third attempt at obtaining benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.1 In this application, Shipley asserts
he is disabled due to degenerative disc disease, diabetes mellitus, diabetic neuropathy, obesity,
major depressive disorder, and generalized anxiety disorder (Doc. 8, Tr. 11) (reference to “Tr” and
the page denote the administrative record). He was a person closely approaching advanced age
under the regulations at the time of his March 2013 application, 20 C.F.R. § 404.1563, in which
he alleged a disability onset date of August 24, 2011 (Tr. 27, 187). The onset date was amended
to a later date, August 1, 2013, at the hearing in January 2015. (Tr. 35). Shipley’s insured status
expired on December 31, 2013. (Tr. 11). He must establish disability on or before that date to be
entitled to benefits. 20 C.F.R. § 404.130.
Shipley’s claims were initially denied on August 9, 2013, and again upon reconsideration
on November 19, 2014. (Tr. 110, 114). An ALJ conducted a hearing on January 7, 2015 during
which Plaintiff and a Vocational Expert (“VE”) testified. (Tr. 34-60).
Shipley applied for benefits without success in 2008 and 2010. (Tr. 43, 55). The 2008 ALJ found
Shipley was not disabled in 2009. (Tr. 51). The 2010 ALJ found the same in 2011. (Tr. 64).
The ALJ conducted the five-step analysis in evaluating Shipley’s claims. The ALJ’s
January 15, 2015, decision found Shipley had the severe impairments of degenerative disc disease,
diabetes mellitus, diabetic neuropathy, obesity, major depressive disorder and generalized anxiety
disorder. (Tr. 11). He also found Shipley had the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b)2 with certain limitations. Those limitations were that
Shipley could perform and maintain concentration for simple, routine, repetitive tasks for two hour
segments and has an ability to adapt to infrequent changes in a work setting, and that involve no
public interaction and only occasional interaction with co-workers and supervisors. (Tr. 13). He
found Shipley could not return to his past work and that transferability of job skills was not material
under the Medical-Vocational Rules. (Tr. 18).
He asked the vocational expert a hypothetical
based on someone with Shipley’s RFC whether there were jobs in the national economy. (Tr. 3639). The VE identified a number of different jobs available in the national and regional economies.
Accordingly, the ALJ found Shipley not disabled at any time from August 1, 2013, the alleged
onset date, through December 31, 2013, the date last insured (20 CFR 404.1520(g)). The Appeals
Council denied Plaintiff’s review request, and Plaintiff appealed to this Court.
Evidence in the Record
The ALJ decision includes a review of the underlying medical evidence. (Tr. 12-17).
Shipley’s motion summarizes the record evidence [Doc. 14, pp. 2-8] and the Commissioner’s
motion does likewise [Doc. 16, pp. 3-13]. The transcript contains records from three treating
providers. Reference to the evidence herein, both medical and otherwise, is only set forth as
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
On appeal, the primary issue for review is whether the Commissioner’s decision is
supported by substantial evidence. In that regard, Shipley argues that the ALJ failed to properly
weigh the medical opinions of the treating sources, Ronald S. Smith, M.D., and Thomas J. Burns,
Ph.D. He also argues that the ALJ erred in the weight it gave the State agency non-examining
medical consultant as required by SSR 96-6p. Next, he argues the ALJ failed to properly weigh
the subjective allegations and his credibility and that substantial evidence did not support the ALJ’s
credibility determination. Finally, he claims the ALJ erred in his reliance upon the VE’s testimony
because the hypothetical question posed to the VE did not include all of Shipley’s limitations.
The ALJ’s analysis of the medical evidence
Shipley saw Ronald Smith, M.D. beginning in April 2011 (Tr. 360-417). He saw Thomas
J. Burns from July 2011 through June 2013 (Tr. 284, 286-301). There is no dispute that both Drs.
Smith and Burns are Shipley’s treating physicians. Shipley claims that the ALJ improperly
evaluated both of their opinions in finding him not disabled. He claims that the ALJ did not follow
the treating physician rule, the Commissioner’s own regulations regarding the weight to give the
opinion of a treating physician and failed to give good reasons for the weight he did ascribe to their
An ALJ must adhere to certain standards in assessing medical evidence supporting a claim
for disability benefits. The “treating physician rule” requires the ALJ to give controlling weight to
the opinions of treating physicians because:
[T]hese sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [the claimant's] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations, such
as consultative examinations or brief hospitalizations.
Wilson v. Comm’r of Soc. Sec., 378 F.3d, 541, 544 (quoting 20 C.F.R. § 404.1527(d)(2)3). The
ALJ “must” give a treating source opinion controlling weight if the treating source opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques” and is “not
inconsistent with the other substantial evidence in [the] case record.” Id. (quoting 20 C.F.R. §
404.1527(d)(2)4). However, “[i]t is an error to give an opinion controlling weight simply because
it is the opinion of a treating source if it is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if it is inconsistent with other substantial evidence in the case
record.” Soc. Sec. Rul. 96–2p, 1996 WL 374188 at *2 (July 2, 1996).
If the ALJ declines to give controlling weight to a treating opinion, the ALJ must still
determine how much weight is appropriate by considering various factors, including the length of
the treatment relationship and the frequency of exams, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole,
and any specialization of the treating physician. See Wilson, 378 F.3d at 544; see also 20 C.F.R. §
404.1527(c)(2). The regulations require the Commissioner to “always give good reasons in [the]
notice of determination or decision for the weight” afforded to the opinion of the claimant’s
treating sources. 20 C.F.R. § 404.1527(c)(2). Those reasons must be “supported by the evidence
in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source's medical opinion and the reasons for that
weight.” Soc. Sec. Rul. 96–2p, 1996 WL 374188 at *5 (July 2, 1996).
There are dual purposes behind this procedural requirement:
“The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases,” particularly in situations where a claimant knows that
his physician has deemed him disabled and therefore “might be especially
Now at 20 C.F.R. § 404.1527(c)(2).
Now at 20 C.F.R. § 404.1527(c)(2).
bewildered when told by an administrative bureaucracy that she is not, unless some
reason for the agency's decision is supplied.”
Wilson, 378 F.3d at 544, quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). The requirement
further ensures that meaningful review of the ALJ's determination can occur. Wilson, 378 F.3d at
544. It also exists to “ensur[e] that each denied claimant receives fair process,” and thus “a failure
to follow the procedural requirement of identifying the reasons for discounting the opinions and
for explaining precisely how those reasons affected the weight accorded the opinion denotes a lack
of substantial evidence, even where the conclusion of the ALJ may be justified based upon the
record.” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007) (emphasis added).
In contrast, opinions from consulting medical sources are not assessed for controlling
weight. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). The Commissioner
“weighs these opinions based on the examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if the treating-source opinion is not deemed controlling.
Id. at 376. (citing 20 C.F.R. § 404.1527(c)).
Regardless of the type of medical opinion assessed, other factors “which tend to support or
contradict the opinion” may be considered. Gayheart, 710 F.3d at 376 (citing 20 C.F.R. §
Regarding Shipley’s physical limitations, Dr. Purswani opined that Shipley could lift 30
pounds frequently one-half of the time in an eight hour work day from the floor; could stand for
six hours per day and walk with breaks for six hours per day, for a total of six hours in an eight
hour day; and could sit for eight hours in an eight hour day (Tr. 326). The ALJ relied upon the
opinion of Dr. Purswani, in conjunction with the medical records and plaintiff’s subjective
complaints, in finding that Shipley could engage in light work with certain limitations. Shipley
points to nothing in the record that would suggest the ALJ erred in this regard. The Court finds
substantial evidence exists to support the findings as to physical impairment.
Shipley’s primary argument focuses on the ALJ’s analysis of the opinions of Shipley’s
treating physicians. Shipley urges that the ALJ erred in failing to give controlling weight to the
treating opinions of Dr. Thomas Burns, a psychologist, and Dr. Ronald Smith, a psychiatrist. The
ALJ gave “little weight” to Dr. Smith’s opinion and “some weight” to Dr. Burns’ opinion.
When an ALJ does not accord controlling weight to the opinion of a treating source, the
ALJ is to determine what weight to ascribe to that opinion based upon the factors set forth in 20
C.F.R. § 404.1527. Here, the ALJ noted ongoing treatment history with both mental health
providers began in July 2011 and identified the providers’ qualifications as required. (Tr. 14). The
ALJ considered the history and frequency of treatment with each provider. These factors were not
determinative and did not weigh against giving controlling weight. Rather, the consistency of the
treating opinions with the record as a whole and other factors, specifically information that tends
to contradict the opinions, provided the primary grounds for the ALJ not giving those opinions
controlling weight. This is apparent from the ALJ’s case history summary:
The claimant also has a history of mental health issues. He has received treatment
from his therapist, Thomas Burns, Ph.D. and Dr. Ronald Smith, Psychiatric
Associates, since July 2011, with working diagnosis of Major Depressive Disorder,
moderate, recurrent. In August 2011, the claimant reported increased depression
and anxiety due to his mother’s death. While mental status examinations through
May 2013 revealed depressed/anxious mood, occasional blunted affect, and impair
judgment, the claimant was alert and oriented in all spheres, had intact memory,
had normal thought content/process, and denied suicidal/homicidal ideation. His
symptoms were mainly due to grief reaction to his mother’s death. In May 2013,
the claimant reported that he did not want to socialize, and in August 2013, after
being denied disability, reported that he was doing no housework or yard work, and
was not interest in personal care/hygiene. He was maintained on medications with
appropriate changes throughout the treatment period.
Dr. Burns’ records reveal that Shipley’s mother was ill in July 2011 and he expected she
would soon pass away. (Tr. 245). He was understandably tearful in his July session. (Id.) Shipley’s
mother died on August 23, 2011. (Tr. 409). (Plaintiff called Dr. Smith’s office the next day,
August 24, 2011, to advise of his mother’s death and he later alleged the disability onset as this
date.) Shipley’s records thereafter reflect recurring discussion with Dr. Burns about grief over the
recent deaths of both parents. (Tr. 284, 286, 289, 290, 291-93, 295-96, 300). Dr. Burns’ records
focus on Shipley’s grief reaction beginning in the summer of 2011. (Tr. 245.) He last noted
continuing grief reaction in April 2013. (Tr. 329). Limited comment was made as to other mental
health issues through this period.
Dr. Burns’ records also indicate that Plaintiff was active during this time period and not
confined to his home as he reported to others, including in testimony before the ALJ. In fact,
Shipley reported routinely visiting the cemetery, ostensibly to visit his parents’ graves, on a daily
basis at various points in 2011 and 2012 (Tr. 294-95) and was still routinely visiting the cemetery
in April 2013. (Tr. 284). He also reported he purchased a home and moved in June 2012. (Tr.
Shipley argues that Dr. Smith and Dr. Burns are consistent with each other, but in a closer
analysis Dr. Smith’s records contrast with Dr. Burns’ records. Dr. Smith makes limited reference
to Shipley experiencing significant, ongoing grief over the loss of his parents and, particularly, his
mother. Rather, he notes that Shipley presents as very anxious and depressed and, at times, hears
voices (something not reflected in Dr. Burns’ notes). Shipley also routinely completed a patient
questionnaire that asked about nine (9) different issues, such as having little interest in doing things
and having trouble concentrating, for the two-week period prior to completion of the questionnaire.
The record contains 39 of these questionnaires in which he marked “nearly every day” (the worst
status possible) for each category except one relating to his sleep and indicated that these problems
make it “extremely difficult” (also the worst status) to work, take care of things at home, or get
along with others. (Tr. 304-13, 375-417, 462-88). Shipley’s subjective questionnaire responses
never changed except for his reports about his ability to sleep.
Dr. Smith’s records vary from Dr. Burns’ with regard to activities and behavior Shipley
reported to him. For example, on November 7, 2011, Shipley reported to Dr. Smith, “I don’t get
out” and that he “walk[s] the floors.” (Tr. 401) Two weeks later, Shipley told Dr. Burns that he
goes to the cemetery “almost daily.” (Tr. 296). Shipley also reported to Dr. Smith, among other
things, that he sat at home in the dark in February 2013 (Tr. 310), that he did not want to “get out
of the house” in March 2013 (Tr. 308) or to socialize in May 2013 (Tr. 303).5 On June 5, 2012,
he reported to Dr. Smith that he seldom watches television and does not read (Tr. 387) and again
filled out a patient questionnaire as discussed above. (Tr. 388). A week later Shipley told Dr.
Burns he had purchased a house and was moving as noted above. (Tr. 291).6
The records of Drs. Smith and Burns seem to depict two different people. One is primarily
grieving over the loss of his parents but remains able to visit the cemetery, to buy a home, and
Shipley also wrote in his May 2013 Function report that he goes to the pharmacy while
also denying going other places on a regular basis. (Tr. 213.)
Shipley’s Global Assessment of Functioning scores (“GAF”) give insight on Shipley’s
status as viewed by both providers. Both providers routinely noted the scores. The lowest GAF
listed by Burns was in the second half of 2011 when Shipley was anticipating the death of his
mother and in the months following. The scores ranged from 55 to 60. By early 2012 and
continuing into 2013, the score increased and remained at 65. The elevated score coincides with
the resolution of the grief reaction and home purchase. In contrast, Dr. Smith assigned scores for
Shipley with 60 being the highest in October 2012. Otherwise, Dr. Smith consistently assessed at
50 to 55 in late 2013 and 2014. The score dropped to 45 in August 2013 after Shipley reported he
was “all to pieces” over his Social Security disability denial. (Tr. 245, 284-01, 328-45, 419.)
move. The other purports to be in such distress that he is incapable of leaving the home, has no
desire to care for himself, and does little or nothing at home. When compared with the records of
Shipley’s internist, Dr. Brian Shafer, in 2012 to late 2014, a third person emerges who routinely
presents as oriented to person, place and time with normal affect and mood and intact judgment
and insight. (Tr. 254, 266, 275, 279, 426, 442, 446, 450).
As noted by the ALJ, these
inconsistencies support his decision not to give their opinion as treating sources controlling weight.
The record contains specific examples of the distinction in person presented to the primary
care physician versus the mental health providers. For example, Shipley claimed to Dr. Smith that
he was nervous and heard voices at his March 11, 2014 appointment and filled out the patient
questionnaire as he had in the past. (Tr. 473). On this date, Dr. Smith assigned a GAF of 45-50
and noted that Shipley’s thought content included delusions, his affect was “labile,” and he was
anxious and depressed. (Tr. 472). Shipley then attended an appointment at Dr. Shafer’s office in
late March 2014 and reported nervousness but that he was otherwise doing well. (Tr. 448). Shipley
did not mention hearing voices and Dr. Shafer noted Shipley’s insight and judgment were intact
and affect and mood normal. (Tr. 450).
In addition to the inconsistency in how Shipley presented himself at appointments and what
information he reported to his providers, there is inconsistency in the disability opinions submitted
by Drs. Smith and Burns. The contrast in descriptions of Shipley is marked. Dr. Burns’ June 2013
opinion reflects that Shipley was diagnosed with major depressive disorder that is moderate and
recurrent. He indicated Shipley had moderate impairment in memory, concentration and social
ability, was not expressing suicidal thoughts, could maintain socially appropriate behavior,
hygiene and grooming, could care for himself and maintain independence in daily living on a
sustained basis, and could manage his own funds. The assessment that Shipley can perform a
variety of non-work activities and handle his activities of daily living are consistent with the record
as a whole. Despite opining Shipley has the capacity to handle these various personal tasks and
categorizing him as having a moderate impairment, Dr. Burns concluded that Shipley cannot
handle simple, “1-2 step” instructions, maintain a work routine without frequent breaks for stress
related reasons, and cannot respond to normal stress and routine change. (Tr. 321).
Dr. Smith’s October 2014 opinion was that Shipley has major depression accompanied by
hallucinations and occasional suicidal ideations and that he appeared depressed, anxious, and
disheveled. (Tr. 532). Medications had not resulted in an adequate response. (Tr. 533). Dr. Smith
concluded that Shipley cannot function in employment or at a reasonable pace and would have
great difficulty making modest decisions and carrying out assigned tasks. (Id.). Dr. Smith’s
discussion of Shipley’s status is inconsistent with Dr. Burns’ discussion, and the providers seem
to have been discussing two different people.
Dr. Smith’s opinion is also inconsistent with his own functional assessment completed for
Metlife.7 (Tr. 493). This April 2014 assessment focused on matters applicable to the specific job
of lubricator that Shipley previously held. Dr. Smith marked that Shipley had a “moderate” ability
to “perform intellectually complex tasks requiring higher levels of reasoning, quantitative or
language skills.” (Tr. 493). He opined that Shipley had a moderate ability to perform activities of
daily living, comprehend and follow instructions, perform simple and repetitive tasks, and respond
appropriately to supervision. He assessed moderately severe or severe ability in other areas, such
as maintaining safety, controlling emotions, handling goals, accepting responsibility for
supervision, and interacting with customers. (Id.)
This was apparently completed for a private disability insurance policy as it lists Shipley’s
recent employer, Eastman, and his job description.
Based upon the foregoing, including the inconsistencies in both mental health providers
opinions and the records of Drs. Burns, Smith and Shafer, the Court finds substantial evidence
exists to support the ALJ’s decision not to give controlling weight to the opinions of Dr. Burns
and Dr. Smith and are “good reasons” for the weight the ALJ ascribed to them. Furthermore, their
opinion that Shipley cannot work is not theirs to make.
While “[a] doctor's conclusion that a
patient is disabled from all work may be considered,” it is not “given special significance because
it may invade the ultimate disability issue reserved to the Commissioner.” Gibbens v. Comm'r of
Soc. Sec., 659 F. App'x 238, 248 (6th Cir. 2016)(quoting Gentry v. Comm'r of Soc. Sec., 741 F.3d
708, 723–24 (6th Cir. 2014)).
Shipley also contends that the ALJ erred in the weight it gave to the State Agency
psychological consultants by not giving a sufficient explanation for assigning significant weight
to the non-examining source. The Court disagrees. The ALJ actually gave only “some weight” to
the State agency psychological consultants. He noted:
The undersigned gives some weight to the opinions of the State agency
psychological consultants; however, a further review of the evidence, including the
claimant’s subjective complaints, finds the claimant more limited.
(Tr. 17). The Court finds substantial evidence supports the ALJ decision to give “some weight”
to the State agency psychological consultants. (Tr. 17). The Court observes that despite writing
that “some weight” was afforded, the ALJ did not place significant reliance upon their analysis
and instead found Shipley was more limited than they had opined. (Tr. 17). That conclusion was
based on consideration of Shipley’s subjective complaints and a review of his medical history.
Shipley’s last argument relative to the medical evidence is that the ALJ erred by not
sending him to a consulting specialist for an exam and opinion. However, the “regulations do not
require an ALJ to refer a claimant to a consultative specialist, but simply grant him the authority
to do so if the existing medical sources do not contain sufficient evidence to make a
determination.” Landsaw v. Sec’y of Health & Human Servs, 803 F.2d 211, 214 (6th Cir. 1986)
(citing 20 C.F.R. § 416.917(a)).
Further, “‘full inquiry’ does not require a consultative
examination at government expense unless the record establishes that such an examination is
necessary to enable the administrative law judge to make the disability decision.” Id. (quoting
Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977)) (emphasis in original); see also Cox v.
Comm'r of Soc. Sec., 615 F. App'x 254, 263 (6th Cir. 2015). Based upon the foregoing, the Court
finds the record was sufficiently developed for the ALJ to make a determination as to disability
without the need for a consultative exam and opinion.
The Court finds that for these reasons, the ALJ properly weighed the opinions of Drs. Smith
and Burns, that he followed SSR 96-2p in finding that their opinions were not entitled to
controlling weight given the inconsistencies discussed herein, and that he otherwise gave good
reasons for the little weight he assigned to them. Substantial evidence supports his treatment of
Shipley next argues that the ALJ failed to properly weigh his subjective allegations because
substantial evidence did not support the ALJ’s credibility determination. The Sixth Circuit has
long held that a claimant’s credibility may be considered. Kirk v. Sec’y of Health & Human Servs.,
667 F.2d 524, 538 (6th Cir. 1981). “An ALJ is not required to accept a claimant's subjective
complaints and may properly consider the credibility of a claimant when making a determination
of disability.” Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (citations omitted).
An 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). The
assessment of credibility must be supported by substantial evidence. Id.
The ALJ made a detailed discussion of credibility. (Tr. 17). The ALJ recognized that
Shipley has limitations due to depression and anxiety and that he has medically determinable
impairments. (Tr. 17). However, the ALJ determined that the record fails to indicate the existence
of one or more impairments of a severity as to preclude all work activity. In so doing, the ALJ
found that the alleged severity of symptoms is not completely consistent with the progress notes
in his medical files. Instead, the ALJ determined that Shipley’s statements regarding mental
related limitations are not credible to the extent alleged. The ALJ, instead, found Shipley had only
The ALJ identified multiple examples from the record that undermine Shipley’s credibility
as to the severity of his conditions. The first examples included Shipley’s behavior in response to
his denial of benefits in 2013. Plaintiff claimed he was “all to pieces” after being denied disability
benefits in August 2013.8 (Tr. 17, 86, 359). The ALJ felt Shipley “told his treating physician that
he was not bathing, not doing his housework, and was doing no yard work, apparently in an attempt
to convince his doctor that he was indeed disabled.” (Tr. 17). Skepticism about Shipley’s behavior
with his doctor is supported by other parts of the record. In both the 2009 and 2011 decisions, each
prior ALJ found that Shipley was able to do a variety of daily activities, interact with friends and
family and handle his personal needs. (Tr. 47, 62). Each cited this information as evidence of
diminished credibility and magnifying or exaggerating symptoms. (Id.). As of August 2013,
Shipley’s counsel advised the ALJ that the disability onset date should be in August 2013 as he
felt the records reflected worsening in Shipley’s status at that time. As is obvious, this purported
worsening is contemporaneous with Shipley’s denial of disability benefits and statement to his
physician that he was “all to pieces” as a result.
Shipley was consistently reporting symptoms and limitations that are the converse of the activities
and behaviors he stated he could perform in his prior disability claims and that were ultimately
cited as grounds for denying him benefits. (Id.) .
The ALJ further felt that Dr. Smith’s observations of Shipley at the time he stated he was
“all to pieces” were important. Although Dr. Smith’s records reflected that Shipley’s judgment
was impaired during the visit, Dr. Smith also recorded that Shipley’s thought content was
unremarkable, his sensorium and memory intact, and he did not endorse suicidal ideation. (Tr. 17).
The ALJ noted that records after this August 2013 visit reflect Shipley had intact judgment and
normal affect, but did not specify which records reflect this. If this is error, the Court finds it
harmless as Shipley’s primary care physician, Dr. Shafer, consistently noted in the psychiatric
portion of his exams that Shipley was oriented to person, place and time and his judgment, affect
and/or mood were normal after August 2013.9 (Tr. 442, 446, 450, 458).
Lastly, the ALJ found a lack of credibility relative to mental health symptoms and status
because Shipley claimed “limited contact with others due to staying home by himself” while, in
contrast, advising he had a friend stay with him when the friend was not working. (Tr. 17). He
also thanked God for his aunt and others who watched out for him. (Tr. 17). The ALJ further
noted that if Plaintiff were in the state he described due to his mental condition, “one would expect
him to be in the hospital.” (Tr. 17). The ALJ’s remark is apt.
The Court gives deference to the ALJ’s credibility determination and finds that substantial
evidence exists to support the same. The Court finds no error in treatment of the subjective
allegations. Furthermore, the determination of partial credibility is sound given the content of the
The primary care physician’s notes in the record dating from early 2012 consistently reflect
normal mood, affect, and/or judgment prior to August 2013. (Tr. 248-82, 422-35).
record and the Court’s ability to consider any evidence in the record regardless of whether it was
cited by the ALJ. See Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001).
The Court has also reviewed the record and observes that the record contains further
confirmation of the ALJ’s credibility determination. Shipley testified: “I just stay secluded in the
house all the time” and “I just can’t stand to get out of the house.” (Tr. 31-32). He also asserts he
cannot go out to places such as Walmart because he is “so nervous” and “[a]nytime I’m around
anybody, it just really makes me tore up [sic].” (Tr. 33).
These assertions are belied by Shipley’s treatment records. Shipley was capable of
attending ongoing visits to his mental health providers and family practice physician from August
2011 through fall 2014.10 Shipley visited the cemetery almost daily in November and December
2011. (Tr. 295-96). He was able to purchase a house and plan to move in June 2012. (Tr. 291).
Nearly a year later, Shipley continued to “routinely [go] to the cemetery.” (Tr. 284).
While the Court does not fault Shipley’s devotion to his deceased parents or purchasing a
home or moving, he never revealed these activities to the Social Security Administration or in his
sworn testimony before the ALJ. Instead, he indicated he is homebound, wholly inactive –
basically an invalid. The Court cannot fault the ALJ in not crediting his testimony.
The Court also notes a lack of credibility in Shipley’s pursuit of disability benefits. Shipley
initiated the pending disability application in March 2013 and cited an onset date of August 24,
2011. (Tr. 186). His treatment records consistently reflect Shipley was grieving for the loss of his
mother beginning with her death in August 2011 and his father a few years prior. Shipley’s grief
is understandable, but it does not form basis for an award of disability, particularly since the grief
There were approximately seventy (70) appointments during this period.
reaction appeared to have resolved by April 2013 when Dr. Burns last noted it as an issue. (Tr.
The amended disability onset date in August 2013 is also troubling. This date is
contemporaneous with a disability denial and Shipley professing he was “all to pieces” over the
denial. In essence, he claims that he is now disabled because of his reaction to the Commissioner’s
decision finding him not disabled. After receiving that adverse ruling, the medical records reflect
a marked change from his daily routine and behavior that the ALJs in both prior cases relied upon
as demonstrating inconsistency with Shipley’s subjective symptoms and upon which they relied
in finding him not credible and, more importantly, not disabled. The ALJ notes that Shipley
reported different activities and behaviors in 2013 in a manner that indicates a total inability to
function and which appeared intended to convince the doctor of his inability to engage in
substantial gainful activity.11 This suggests that Shipley is pursuing benefits for an exacerbation
of a mental condition allegedly resulting from a denial of disability benefits for the same mental
condition(s). A claim of disability (or the appearance of one) based upon a denial of disability
benefits coupled with symptoms the ALJ certainly viewed as contrived further erodes Shipley’s
credibility.12 The Court finds that substantial evidence exists in the record to support the ALJ’s
determination as to credibility.
Notably, the treatment records do not reflect that Shipley’s conditions necessitated emergent
care, including emergency sessions with either mental health provider, or hospitalization during
the period beginning with the original alleged disability onset date through the date of the ALJ’s
The Court will not venture onto the slippery slope of opining whether an outcome in a disability
case can create or exacerbate a condition in a manner that then qualifies the person for benefits as
there is substantial evidence to support the ALJ’s decision otherwise.
The ALJ’s hypothetical to the Vocational Expert
The VE described Shipley’s work history and identified the exertional level for those
positions. (Tr. 36-37). The ALJ asked if a hypothetical person in Shipley’s position would be
prevented from doing all of his past work if he could only perform and maintain concentration and
persistence for simple, routine, and repetitive tasks for a two-hour segment, could adapt to
infrequent changes in the work setting, and would be limited to work not requiring public
interaction or more than occasional interaction with coworkers and supervisors. (Tr. 37). The VE
confirmed such a person could not return to his past work under these parameters. (Tr. 37).
The ALJ next inquired whether other occupations would be available to a person of
Shipley’s age, education and experience who was restricted as noted. (Tr. 37). The VE testified
that occupations such as housekeeping, power screwdriver operator and production assembly jobs
were available in the national and state economies. (Tr. 37-38). The ALJ also posed a hypothetical
question, based on Dr. Smith’s opinion about Shipley’s limitations, about work available to a
person capable of light work but limited by a “substantial loss in his ability to perform at least one
of the basic mental demands of unskilled work activity.” (Tr. 38). The VE opined that such a
person would be unable to engage in competitive employment for any type of work. (Tr. 38-39).
Plaintiff alleges the ALJ erred by posing a hypothetical question to the VE that did not
include all of Plaintiff’s mental or physical impairments. An ALJ is not required to incorporate
“all” limitations in a hypothetical question. Rather, “[i]t is well established than an ALJ . . . is
required to incorporate only those limitations accepted as credible by the finder of fact.” Casey v.
Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); see also Winslow v. Comm'r
of Soc. Sec., 566 F. App'x 418, 421 (6th Cir. 2014). Further, “[a] vocational expert's testimony
concerning the availability of suitable work may constitute substantial evidence where the
testimony is elicited in response to a hypothetical question that accurately sets forth the plaintiff's
physical and mental impairments.” Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001).
Here, the ALJ’s first hypothetical question clearly incorporates the limitations or
restrictions the ALJ deemed credible, as discussed supra, and which resulted in the ALJ utilizing
light work with specific limitations as opposed to medium work set in Plaintiff’s prior social
security cases in 2009 and 2011. (Tr. 48, 160). Shipley urges that the ALJ erred because he did
not rely upon Dr. Kirsh Purswani’s consulting medical opinion as to Shipley’s capacity to stand
or walk with breaks for six hours in an eight (8) hour day. But the hypothetical presented asked
the VE to opine about Shipley’s ability to perform work in which he was limited to “simple,
routine, repetitive tasks for two hour segments.” The VE responded with occupations that fit such
parameters. (Tr. 37). That argument is without merit.
Based upon the foregoing, Plaintiff’s motion for judgment on the pleadings [Doc. 13] is
DENIED and the Commissioner’s motion for summary judgment [Doc. 15] is GRANTED for the
reasons stated herein.
s/ Clifton L. Corker
UNITED STATES MAGISTRATE JUDGE
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