Moss v. Social Security Administration, Commissioner of

Filing 18

MEMORANDUM AND ORDER. For the foregoing reasons, it is ORDERED that:1) Plaintiffs motion for judgment on the pleadings [Doc. 13] is DENIED;2) The Commissioners motion for summary judgment [Doc. 15] is GRANTED;and 3) The Commissioners decision denying benefits is AFFIRMED Signed by Magistrate Judge Susan K Lee on 5/22/2019. (BDG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
JACOB L. MOSS,

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

No. 2:18-CV-00056-SKL

MEMORANDUM AND ORDER
Plaintiff Jacob L. Moss (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c) seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying him disability insurance benefits (“DIB”). Each party
has moved for judgment [Docs. 13 & 15] and filed supporting briefs [Docs. 14 & 16]. This matter
is now ripe. For the reasons stated below: (1) Plaintiff’s motion for judgment on the pleadings
[Doc. 13] will be DENIED; (2) the Commissioner’s motion for summary judgment [Doc. 15] will
be GRANTED; and (3) the decision of the Commissioner will be AFFIRMED.
I.

ADMINISTRATIVE PROCEEDINGS
According to the administrative record [Doc. 8 (“Tr.”)], Plaintiff filed his application for

DIB on July 11, 2016, alleging disability beginning September 10, 2011. Plaintiff’s claims were
denied initially and on reconsideration at the agency level. Plaintiff requested a hearing before an
administrative law judge (“ALJ”), which was held on June 26, 2017. A supplemental hearing was
held on September 20, 2017. On November 7, 2017, the ALJ found Plaintiff was not under a
disability as defined in the Social Security Act at any time between the alleged onset date through

the date of the decision. The Appeals Council denied Plaintiff’s request for review, making the
ALJ’s decision the final decision of the Commissioner. Plaintiff timely filed the instant action.
II.

FACTUAL BACKGROUND
A.

Education and Employment Background

Plaintiff was born July 27, 1987, making him a younger person as defined by the relevant
Social Security Administration (“SSA”) regulation, at all relevant times. 20 C.F.R. § 404.1563(c).
He has an associate’s degree in criminal justice, and is able to communicate in English. He has
past relevant work as a sales clerk.
B.

Medical Records

In his July 2016 Disability Report, Plaintiff alleged disability due to post-traumatic stress
disorder (“PTSD”), anxiety, traumatic brain injury, arthritis in back, and history of ACL repair
(Tr. 241). While there is no need to summarize the medical records herein, the relevant records
have been reviewed and will be discussed as necessary below.
C.

Hearing Testimony

At the hearing before the ALJ on June 26, 2017, Plaintiff testified, after which the ALJ
ordered Plaintiff to attend a psychological consultative exam and continued the hearing. At the
second hearing held September 20, 2017, Plaintiff and a vocational expert (“VE”) testified.
Plaintiff was represented by an attorney at both hearings. The Court has carefully reviewed the
transcript of both hearings (Tr. 35-87).

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III.

ELIGIBILITY AND THE ALJ’S FINDINGS
A.

Eligibility

“The Social Security Act defines a disability as the ‘inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.’” Schmiedebusch v. Comm’r of Soc. Sec., 536 F. App’x 637, 646 (6th
Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)); see also Parks v. Soc. Sec. Admin., 413 F. App’x
856, 862 (6th Cir. 2011) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant is disabled “only if his
physical or mental impairment or impairments are of such severity that he is not only unable to do
his previous work, but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy.” Parks, 413 F. App’x
at 862 (quoting 42 U.S.C. § 423(d)(2)(A)). The SSA determines eligibility for disability benefits
by following a five-step process. 20 C.F.R. § 404.1520(a)(4)(i-v). The five-step process provides:
1) If the claimant is doing substantial gainful activity, the claimant is
not disabled.
2) If the claimant does not have a severe medically determinable
physical or mental impairment—i.e., an impairment that
significantly limits his or her physical or mental ability to do basic
work activities—the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one
of the listings in Appendix 1 to Subpart P of the regulations and
meets the duration requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from doing
his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant
is not disabled.
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Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citations omitted). The
claimant bears the burden to show the extent of his impairments, but at step five, the Commissioner
bears the burden to show that, notwithstanding those impairments, there are jobs the claimant is
capable of performing. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010)
(citations omitted).
B.

The ALJ’s Findings

The ALJ found Plaintiff last met the insured status requirements on December 31, 2016.
At step one of the five-step process, the ALJ found Plaintiff had not engaged in substantial gainful
activity between his alleged onset date and his date last insured. At step two, the ALJ found
Plaintiff had the following severe impairments: degenerative joint disease (“DJD”) in the left wrist
and both knees, osteoarthritis of the lumbar spine, mild degenerative disc disease (“DDD”) of the
cervical spine, cognitive disorder, anxiety, and PTSD. The ALJ also noted Plaintiff had a history
of drug abuse, but found it did not result in any limitations and was therefore non-severe. At step
three, the ALJ found Plaintiff did not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
Next, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform
medium work as defined in 20 C.F.R. § 404.1567(c), except Plaintiff was limited to frequent
postural activities; he could never climb ladders, ropes, or scaffolds; he would need to “avoid
concentrated exposure to noise, vibration, and hazards;” and he was limited to “simple unskilled
work with infrequent changes in routine.” (Tr. 19).

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At step four, the ALJ found Plaintiff was incapable of performing his past relevant work.
At step five, however, the ALJ found Plaintiff was capable of performing other work existing in
significant numbers in Tennessee and in the national economy, including work as a janitor and as
a cafeteria worker. These findings led to the ALJ’s determination that Plaintiff was not under a
disability as defined in the Social Security Act at any time between the alleged onset date and the
date Plaintiff was last insured.
IV.

ANALYSIS
Plaintiff asserts the ALJ’s decision should be reversed and this matter remanded for further

proceedings because the ALJ’s assessment of his RFC is not supported by substantial evidence.
He argues the ALJ erred in a number of ways, including by failing to assign weight to certain
opinions from providers at the Mountain Home Veterans Administration Medical Center (“VA”),
the ALJ erred by not ordering a physical consultative exam, and the ALJ did not properly consider
relevant evidence concerning his psychological limitations, including Plaintiff’s subjective reports
concerning his symptoms. The Court will address each issue in turn.
A.

Standard of Review

A court must affirm the Commissioner’s decision unless it rests on an incorrect legal
standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citations omitted). The United States 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
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to support a conclusion.’” Id. (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
see also McClanahan, 474 F.3d at 833. Furthermore, the evidence must be “substantial” in light
of the record as a whole, “tak[ing] into account whatever in the record fairly detracts from its
weight.” Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (citations omitted).
If there is substantial evidence to support the Commissioner’s findings, they should be
affirmed, even if the court might have decided facts differently, or if substantial evidence would
also have supported other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996) (citations
omitted); Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971) (citation omitted). The court may
not re-weigh evidence, resolve conflicts in evidence, or decide questions of credibility. Garner,
745 F.2d at 387. The substantial evidence standard allows considerable latitude to administrative
decision makers because it presupposes “there is a ‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” McClanahan, 474 F.3d at 833
(quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).
The court may consider any evidence in the record, regardless of whether it has been cited
by the ALJ. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may
not, however, consider any evidence which was not before the ALJ for purposes of substantial
evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is
under no obligation to scour the record for errors not identified by the claimant, Howington v.
Astrue, No. 2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that
assignments of error not made by claimant were waived), and arguments not raised and supported
in more than a perfunctory manner may be deemed waived, Woods v. Comm’r of Soc. Sec., No.
1:08-CV-651, 2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing McPherson v. Kelsey,
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125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory claims of error without further
argument or authority may be considered waived).
B.

The ALJ’s Physical RFC Assessment is Supported by Substantial Evidence.

Plaintiff argues the ALJ’s assessment of his physical RFC is not supported by substantial
evidence “as it does not include all of the uncontradicted impairments” [Doc. 14 at Page ID #
1857]. He points out the ALJ did not specifically address certain notations in his VA records,
contending this is error because the ALJ “must evaluate every medical opinion he receives,” citing
20 C.F.R. § 404.1527(c) [id. at Page ID # 1858]. He also argues the ALJ erred by not ordering a
physical consultative exam.
A claimant’s RFC is the most they can do despite their impairments. 20 C.F.R. §
404.1545(a)(1). In other words, the RFC describes “the claimant’s residual abilities or what a
claimant can do, not what maladies a claimant suffers from—though the maladies will certainly
inform the ALJ’s conclusion about the claimant’s abilities.” Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 240 (6th Cir. 2002). An ALJ is responsible for determining a claimant’s RFC after
reviewing all of the relevant evidence in the record. Rudd v. Comm’r of Soc. Sec., 531 F. App’x
719, 728 (6th Cir. 2013).
1.

The VA Opinions

The ALJ discussed Plaintiff’s medical records from the VA, and acknowledged the VA’s
determination that Plaintiff is 100% disabled (Tr. 20-21, 25). The ALJ gave this determination
little weight, which Plaintiff does not challenge. Plaintiff does argue, however, that the ALJ
committed harmful error by failing to specifically evaluate certain notations in Plaintiff’s medical
records from the VA. Plaintiff cites to two notes in VA disability benefits questionnaires: (1) a
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note dated December 20, 2015, from Eleanor Snow, PA, indicating Plaintiff’s “back condition”
required him to “avoid heavy lifting and repetitive bending” (Tr. 1266, 1273); and (2) a note dated
January 19, 2013, from John Fano-Schultze, PA, indicating Plaintiff’s left wrist flexion and
extension were 4/5 in terms of strength (Tr. 771, 792). Plaintiff also cites to a note dated May 16,
2014, from Celeste Peterson, D.O., stating, “wrist dysfunction-encouraged to continue wear brace
[sic] when able” (Tr. 1381, 1384).
The notes from PA Snow and PA Fano-Schultze are not “medical opinions.” See 20 C.F.R.
§ 404.1527(a)(2) (“Medical opinions are statements from acceptable medical sources that reflect
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.” (emphasis added)); § 404.1513(a)(2) (“For claims filed . . . before March 27, 2017,
see § 404.1527(a) for the definition of medical opinion.”); see also Engebrecht v. Comm’r of Soc.
Sec., 572 F. App’x 392, (6th Cir. 2014) (explaining physicians’ assistants are not acceptable
medical sources (citation omitted)).1 Accordingly, the ALJ was not necessarily required to
evaluate their opinions pursuant to 20 C.F.R. § 404.1527(c), as Plaintiff contends. Rather, the
regulation provides the ALJ “generally should explain the weight given to opinions from these
sources or otherwise ensure that the discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning, when such
opinions may have an effect on the outcome of the case.” Id. § 404.1527(f)(2) (emphasis

1

The SSA has revised this rule for claims filed on or after March 27, 2017. See Revisions to Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819, at *5844
(Jan. 18, 2017). Under the current regulation, which does not apply to Plaintiff’s claim, a medical
opinion can come from any “medical source.” 20 C.F.R. § 404.1513(a)(2).
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added); see also Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007) (discussing
Social Security Ruling (“SSR”) 06-03p, which restates the requirements of 20 C.F.R. §
404.1527(c)); Caldwell v. Colvin, No. 3:12-0594, 2016 WL 5710903, at *9 (M.D. Tenn. Sept. 28,
2016) (finding an ALJ’s failure to explain why certain limitations were not incorporated into RFC
was harmless error because the opinion did “not include any limitations from an acceptable
medical source”).
The ALJ discussed the VA records concerning Plaintiff’s back and wrist issues in detail,
and the Court need not repeat that discussion verbatim herein. It suffices to note the following:
the ALJ specifically mentioned PA Fano-Schultz’s finding of 4/5 strength on Plaintiff’s left wrist
(Tr. 21). He also discussed the mild findings resulting from an x-ray on Plaintiff’s lumbar spine,
noting how Plaintiff was referred to physical therapy, which Plaintiff reported resulted in
improvement. Plaintiff testified at the September 2017 supplemental hearing that he had not been
to the VA for treatment since November 2016 (Tr. 46). As the ALJ explains, in August 2017,
Plaintiff began receiving acupuncture treatment and was able to stop taking pain medication (Tr.
21). The ALJ also discussed other medical opinion evidence concerning Plaintiff’s physical state;
specifically, he rejected Dr. Ann Chang’s opinion that Plaintiff was limited to lifting only up to 10
pounds, because Dr. Chang’s opinion was given just after a car accident, and he credited the state
agency non-examining physician’s opinion that Plaintiff could perform a range of medium work,
finding it was consistent with the medical evidence of record (Tr. 25). Accordingly, the Court
finds the ALJ’s discussion of the evidence allows the Court and Plaintiff to follow the ALJ’s
reasoning. Moreover, arguably the ALJ’s limitation to medium work with only frequent postural,
no climbing of ropes or scaffolds, and avoiding noise, vibration, and hazards, incorporates the
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findings of PA Snow (avoid heavy lifting and repetitive bending) and PA Fano-Schultz (4/5
strength in wrist). Accordingly, the Court finds no harmful error in the ALJ’s failure to specifically
weigh these opinions.
The Court likewise finds no harmful error in the ALJ’s failure to assign weight to Dr.
Peterson’s May 16, 2014, note: “wrist dysfunction-encouraged to wear brace when able.” (Tr.
1381). Plaintiff seems to suggest this note is consistent with the opinion of the state agency nonexamining medical consultant (Peter Arrowsmith, M.D.), that Plaintiff could engage in “feeling
(skin receptors)” only frequently, and Plaintiff needs to avoid work that requires “sustained
articulate or rapid speech.” (Tr. 105).
Assuming Dr. Peterson’s May 16, 2014, note constitutes a “medical opinion,” the ALJ
made findings completely consistent with it. The ALJ found Plaintiff had DJD in his left wrist
and that it was a severe impairment, which covers the diagnosis of “wrist dysfunction.” See Hill
v. Comm’r of Soc. Sec., 560 F. App’x 547, 551 (6th Cir. 2014) (“[D]isability is determined by the
functional limitations imposed by a condition, not the mere diagnosis of it.” (citation omitted));
see also Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (A “mere diagnosis . . . says nothing
about the severity of the condition.”). Plaintiff fails to articulate how Dr. Peterson’s note about a
wrist brace constitutes a medical opinion or indicates a need for any greater restrictions than those
found by the ALJ. Indeed, Dr. Peterson’s “Assessment/Plan/Recommendations” section from the
same appointment does not further mention Plaintiff’s wrist as an ongoing concern. Furthermore,
the encouragement to wear a wrist brace (or the wrist disfunction diagnosis) does not describe the
extent of the wrist disfunction or the limits it places on Plaintiff’s ability to work. Accordingly,
even assuming Dr. Peterson is a treating physician whose opinion is entitled to deference, the
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ALJ’s failure to specifically discuss the note Plaintiff cites would be harmless error in this case.
See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (failure to address treating
physician’s opinion is harmless error “if the Commissioner adopts the opinion of the treating
source or makes findings consistent with the opinion,” if the ALJ otherwise meets the goal of the
treating physician rule, or if the opinion is “so patently deficient that the Commissioner could not
possibly credit it”).
As for Plaintiff’s mention of Dr. Arrowsmith’s opinion, it is unclear how the limitations
for frequent (rather than continuous) “feeling” and avoiding rapid, articulate speech limitations
relate to Dr. Peterson’s note. The ALJ found these limitations were not consistent with the medical
evidence of record, which Plaintiff does not challenge.

If anything, Dr. Peterson’s

recommendation for a brace and the fact that Dr. Peterson did not include Plaintiff’s wrist as an
ongoing concern bolsters the ALJ’s determination not to credit the “feeling” limitation.
Accordingly, these limitations do not change the Court’s analysis concerning Dr. Peterson’s
opinion.
For these reasons, the Court finds no harmful error in the ALJ’s failure to discuss the
“opinions” in Plaintiff’s VA records from PA Snow, PA Fano-Schultze, or Dr. Peterson. This
failure does not render the ALJ’s physical RFC assessment unsupported by substantial evidence.
2.

Physical Consultative Exam

Plaintiff also argues “a consultative physical examination with a residual functional
capacity was essential for a full and fair resolution of the Plaintiff’s claim.” [Doc. 14 at Page ID #
1858]. He argues the VA records and Dr. Arrowsmith’s opinion show “severe knee difficulties
and hand difficulties,” which support Plaintiff’s contention that further limitations specifically for
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lifting, bending, and using his hands should have been incorporated into Plaintiff’s RFC [id. at
Page ID # 1859].
Although an ALJ “has a basic obligation to develop a full and fair record,” the ALJ “is not
required to act as the claimant’s counsel or produce evidence for the claimant.” Dodson v. Comm’r
of Soc. Sec., No. 1:12-CV-109, 2013 WL 4014715, at *13 (E.D. Tenn. Aug. 6, 2013) (citing Born
v. Sec’y of Health & Human Servs., 923 F.2d 1168, 1172 (6th Cir.1990); Duncan v. Sec’y of Health
& Human Servs., 801 F.2d 847, 856 (6th Cir.1986)). “An ALJ has discretion to determine whether
further evidence, such as additional testing or expert testimony, is necessary.” Brooks v. Astrue,
No. 3:09-CV-432, 2011 WL 652839, at *8 (E.D. Tenn. Jan. 26, 2011) (quoting Foster, 279 F.3d
at 355 (internal quotation marks omitted)), report and recommendation adopted, No. 3:09-CV-432,
2011 WL 652837 (E.D. Tenn. Feb. 14, 2011). Further, because here Plaintiff was represented by
counsel at the administrative level, “[t]he ALJ was entitled to assume that Plaintiff . . . was
presenting [their] best evidence in favor of benefits.” Birdwell v. Barnhart, No. 2:06-0063, 2008
WL 2414828, at *10 (M.D. Tenn. June 12, 2008) (citing Delgado v. Comm’r of Soc. Sec., 30 F.
App’x 542, 549 (6th Cir.2002); Glen v. Sec’y of Health & Human Servs., 814 F.2d 387, 391 (7th
Cir. 1987)).
Even when Plaintiff’s initial hearing was continued for the completion of a psychological
consultative exam, Plaintiff did not request a physical consultative exam from the SSA, or arrange
for one himself (Tr. 85). As the Commissioner argues, there was sufficient evidence in the record
for the ALJ to properly evaluate Plaintiff’s physical health issues, including Dr. Arrowsmith’s
opinion, Dr. Peterson’s records, an April 2012 MRI on Plaintiff’s wrist, and the records concerning
Plaintiff’s knee, all of which the ALJ discussed. The record “contain[s] a considerable amount of
12

evidence” pertaining to Plaintiff’s ability to perform physical functions. See Culp v. Comm’r of
Soc. Sec., 529 F. App’x 750, 751 (6th Cir. 2013). As such, the Court concludes the ALJ did not
err by declining to obtain a further physical consultative exam. Plaintiff’s motion will be denied
in this regard.
C.

The Psychological RFC Assessment is Supported by Substantial Evidence

Plaintiff similarly argues the ALJ’s assessment of his RFC “from a psychological
standpoint is also not supported by substantial evidence.” [Doc. 14 at Page ID # 1859]. He briefly
challenges the ALJ’s consideration of the psychological consultative examiner’s report, and again
contends the ALJ overlooked “opinion evidence” in the VA file. He also argues the ALJ failed to
properly evaluate his subjective symptoms and allegations.
1.

Psychological Consultative Exam Report

At the request of the ALJ, Steven Lawhon, Psy.D., performed a psychological consultative
examination on Plaintiff on July 13, 2017. The ALJ discussed Dr. Lawhon’s opinion as follows:
On July 13, 2017, the claimant was referred to Dr. Steven
Lawhon, psychological consultative examiner. The claimant
admitted depression and occasional suicidal ideas but denied any
current plan or intention. He recalled two presidents and completed
serial seven’s tasks. While the claimant could not perform common
proverbs, he recalled two out of three objects suggesting mild
impairment to short-term memory. Dr. Lawhon assessed that the
claimant was functioning in the average range of intellect. During
the evaluation, Dr. Lawhon stated that it was unclear if the claimant
was experiencing psychotic symptoms. He noted that the claimant
might be malingering. Dr. Lawhon stated that the claimant was
rational and oriented in person, place, and situation. He diagnosed
PTSD. He assessed that the claimant’s ability to understand and
remember was mildly limited; sustain concentration and
persisten[ce] was moderately limited; social interaction was not
significantly limited; and work adaptation was moderately limited
(Exhibit 5F).
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(Tr. 24). In weighing Dr. Lawhon’s opinion, the ALJ wrote:
Dr. Steven Lawhon, psychological consultative examiner, is
given great weight. Dr. Lawhon assessed that the claimant has no
more than moderate limitation in ability to sustain concentration and
persistence, and adaptation (Exhibit 5F). This is consistent with the
medical evidence of record and is supported by the medical signs
and findings.
(Tr. 25).
As pertinent, Dr. Lawhon states in his opinion that the ALJ specifically requested the test
“to address exaggeration or malingering.” (Tr. 1719). Dr. Lawhon noted “there wasn’t sufficient
evidence to confirm malingering during the evaluation,” and he recommended Plaintiff undergo
additional psychological testing, for example the M-Fast test and the Personality Assessment
Inventory (“PAI”) test, which “includes a measure of malingering.” (Tr. 1719). Plaintiff points
out he did in fact take PAI tests in January 2012 and November 2016, which both showed he
“answered in a reasonably forthright manner and did not attempt to present an unrealistic or
inaccurate impression that was either more negative or more positive than the clinical picture
would warrant.” (Tr. 869, 1704). Plaintiff argues “those tests show he was not malingering and at
the very least should have been shared with the consultative examiner to inform his opinion.” [Doc.
14 at Page ID # 1859 (citation to Tr. omitted)].
Plaintiff’s argument is not well-taken. As the Commissioner argues, Dr. Lawhon only
recommended further testing “to address the ALJ’s question of whether Plaintiff was a
malingerer,” not to complete his psychological RFC assessment [Doc. 16 at Page ID # 1878]. Dr.
Lawhon’s opinion makes clear that he was unable to “confirm malingering,” meaning that while
the ALJ raised the issue of malingering, Dr. Lawhon did not find Plaintiff was malingering (Tr.
1719 (emphasis added)).

In other words, Dr. Lawhon credited Plaintiff’s allegations and
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accounting of his symptoms, found Plaintiff’s test results were valid, and still determined Plaintiff
was “not significantly limited” in his ability to interact socially, only mildly limited in his ability
to understand and remember, and only moderately limited in his ability to sustain concentration,
persistence and pace and adapt to a work environment (Tr. 1719). The fact that Dr. Lawhon did
not have the test results from the VA clearly would not have made a difference. Although as
discussed below, the ALJ ultimately found Plaintiff’s description of his subjective symptoms was
not entirely consistent with the record, this finding was not based on any medical opinion that
Plaintiff was malingering during his psychological exam, which yielded nothing more than
moderate functional limitations.
Plaintiff also very briefly argues the ALJ failed to mention the VA opinion evidence from
July 2012 that Plaintiff’s PTSD and cognitive disorder caused “reduced reliability and productivity
in the sense that if he is not on medication, he does not focus and concentrate as well at school;
this could translate into not performing well in a work environment as well because he would have
trouble focusing and concentrating there as well.” (Tr. 721). Without citing any authority, Plaintiff
submits that a “limitation for simple, unskilled work with infrequent changes does not adequately
address” all of Plaintiff’s mental health limitations [Doc. 14 at Page ID # 1859-60 (citation to Tr.
omitted)].
But this opinion does not explain the extent to which Plaintiff’s troubles with focusing and
concentrating would actually affect his ability to work. The ALJ found Plaintiff had moderate
limitations in maintaining concentration, persistence or pace (Tr. 19), which is certainly consistent
with the VA opinion, as well as the opinion of Dr. Lawhon (which the ALJ assigned great weight).
The United States Court of Appeals for the Sixth Circuit has held that a limitation to “simple,
15

routine, and repetitive tasks adequately conveys [a claimant’s] moderately-limited ability ‘to
maintain attention and concentration for extended periods,’” where the opinion evidence did not
identify “any concrete functional limitations.” Smith-Johnson v. Comm’r of Soc. Sec., 579 F.
App’x 426, 437 (6th Cir. 2014); see also Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 635
(6th Cir. 2016) (“Case law in this Circuit does not support a rule that a hypothetical providing for
simple, unskilled work is per se insufficient to convey moderate limitations in concentration,
persistence and pace.”). Moreover, as the Commissioner points out and as the ALJ discussed, once
Plaintiff started taking his medication, his condition improved to the point he was able to perform
well in school and eventually graduate with an associate degree (Tr. 22, 73, 634). See, e.g., Baker
v. Astrue, 617 F. Supp. 2d 498, 505-06 (E.D. Ky. 2008) (improvement with medication not
consistent with disability); see also Gant v. Comm’r of Soc. Sec., 372 F. App’x 582, 585-86 (6th
Cir. 2010) (“Impairments that are controllable or amenable to treatment cannot support a finding
of disability.” (citations omitted)).
Accordingly, the Court finds no harmful error in the ALJ’s failure to explicitly assign
weight to the July 2012 VA opinion concerning Plaintiff’s mental limitations. Plaintiff’s motion
will be denied in this regard.
2.

Subjective Symptoms

In connection with the issues he raises about his mental RFC, Plaintiff also makes a
conclusory argument that the ALJ erred by not fully crediting Plaintiff’s allegations concerning
his symptoms. Plaintiff writes: “It is submitted that the Plaintiff’s limitations as a result of his
traumatic brain injury, PTSD, knee and wrist difficulties are amply supported by the medical

16

evidence of record, and the ALJ erred in finding that the Plaintiff was not fully credible2 in view
of the evidence.” [Doc. 14 at Page ID # 1860].
Social Security Ruling (“SSR”) 16-3p provides guidance as to how the SSA evaluates a
claimant’s statements regarding the intensity, persistence, and limiting effects of symptoms in
disability claims. In this case, the ALJ found the evidence as a whole did not support of a finding
of any limitations beyond simple, unskilled, medium work, with infrequent changes in routine, no
more than frequent postural activities, no climbing ladders, ropes, or scaffolds, and avoiding
concentrated exposure to noise, vibrations, and hazards (Tr. 19). An examination of the ALJ’s
decision shows that he set forth and discussed the relevant evidence in a sufficiently thorough
manner.
The ALJ wrote:
After careful consideration of the evidence, the undersigned
finds that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with
the medical evidence and other evidence in the record for the reasons
explained in this decision.
As for the claimant’s statements about the intensity,
persistence, and limiting effects of his symptoms, they are
inconsistent because the medical evidence of record shows that the
claimant is not currently receiving counseling. He testified that he
is not taking his medication. The evidence shows that the claimant
is receiving acupuncture. He reported to Michelle Bouton, Licensed
Acupuncturist, during his treatments that he is hiking, which has
helped with his recovery. While the claimant reported that he has
2

Social Security Ruling (“SSR”) 16-3p eliminated use of the term “credibility,” effective March
2016, thereby superseding SSR 96-7p, which used the old terminology. See SSR 16-3p, 2016 WL
1119029, at *1 (Mar. 16, 2016). It further clarified that subjective symptom evaluation is not an
examination of a claimant’s character. The ALJ analyzed Plaintiff’s subjective symptom reports
pursuant to SSR 16-3p (Tr. 16).
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difficulty with memory, concentration, and task completion, the
medical evidence of record shows that the claimant received an
Associate’s Degree in Criminal Justice. He reported memory
problems; however, he lives alone, drives, and handles finances
without reminders. The objective evidence shows that the
claimant’s subjective memory problems do not appear to cause more
than mild functional limitations. While he reported problems
trusting people and anger issues, he reported that he has a support
group, which includes his parents, brother, girlfriend, and a couple
of close friends, with whom he spends his time.
(Tr. 24-25).
The ALJ did not mischaracterize or overstate Plaintiff’s activities of daily living, and it was
proper for the ALJ to consider daily activities as one factor in the evaluation of a claimant’s
subjecting complaints. See Temples v. Comm’r of Soc. Sec., 515 F. App’x 460, 462 (6th Cir. 2013)
(citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)); see also SSR 16-3p;
20 C.F.R. § 404.1529. It was also proper for the ALJ to consider that Plaintiff stopped taking his
medication. See 20 C.F.R. § 404.1529(c)(3). Elsewhere in the decision, the ALJ discussed other
evidence which did not support Plaintiff’s disabling allegations, including mostly normal findings
on an x-ray of Plaintiff’s lumbar spine, his only slightly reduced grip strength, the fact that he was
remodeling his house, and Dr. Arrowsmith’s opinion that Plaintiff was capable of performing a
range medium work.
Accordingly, the Court finds the ALJ properly evaluated Plaintiff’s subjective complaints
and alleged symptoms in a manner consisted with relevant SSA policies and regulations, including
SSR 16-3p and 20 C.F.R. § 404.1529. Such evaluations are properly entrusted to the ALJ, Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 476 (6th Cir. 2003), and Plaintiff has failed to show any error in the ALJ’s decision in this
regard.
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D.

Step Five

Plaintiff also briefly challenges the ALJ’s step five determination that Plaintiff was capable
of performing jobs that exist in significant numbers in the national economy, including as a janitor
and a cafeteria worker (Tr. 27).
It is undisputed that the Commissioner has the burden of proof at the fifth step of the
sequential process used for determining whether a claimant is disabled. Specifically, the ALJ must
“make a finding ‘supported by substantial evidence that [the claimant] has the vocational
qualifications to perform specific jobs.’” Howard, 276 F.3d at 238 (quoting Varley v. Sec’y of
Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987)). Substantial evidence “may be
produced through reliance on the testimony of a [VE] in response to a ‘hypothetical’ question,” id.
(citing Varley, 820 F.2d at 779), but only if the question considers the claimant’s limitations. Webb
v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004). Nevertheless, the “rule that a
hypothetical question must incorporate all of the claimant’s physical and mental limitations does
not divest the ALJ of his or her obligation to assess credibility and determine the facts.” Griffeth
v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 2007) (internal quotation marks and
citation omitted). It is “well established that an ALJ may pose hypothetical questions to a
vocational expert and is required to incorporate only those limitations accepted as credible by the
finder of fact.” Helton v. Berryhill, No. 7:18-cv-008-JMH, 2018 WL 5986747, at *6 (E.D. Ky.
Nov. 14, 2018) (quoting Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.
1993)).
As discussed above, Plaintiff has failed to show harmful error in the ALJ’s RFC
determination, and the Court finds it is supported by substantial evidence. The ALJ’s step five
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determination was based on the testimony of the VE in response to a hypothetical question which
matched that same RFC determination (Tr. 27-28, 66). The step-five determination is therefore
supported by substantial evidence.
V.

CONCLUSION
For the foregoing reasons, it is ORDERED that:
1) Plaintiff’s motion for judgment on the pleadings [Doc. 13] is DENIED;
2) The Commissioner’s motion for summary judgment [Doc. 15] is GRANTED;
and
3) The Commissioner’s decision denying benefits is AFFIRMED.

SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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