Selby v. Social Security Administration

Filing 16

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/11/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PAUL ANTHONY SELBY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.

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NO. 1:13-cv-00146
CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION
Pending before the Court in this Social Security action is Paul Anthony Selby’s Motion for
Judgment on the Administrative Record (Doc. No. 12), to which the Commissioner of Social
Security has responded (Doc. No. 13). Upon consideration of these filings and the transcript of the
administrative record (Doc. No. 10), 2 and for the reasons given below, Selby’s motion for
judgment will be DENIED and the decision of the Commissioner will be AFFIRMED.
I.

Statement of the Case
Selby filed applications for disability insurance benefits and supplemental security income

under Titles II and XVI of the Social Security Act on September 30, 2010, alleging disability onset
as of January 1, 2009, due to back and hip problems. (Tr. 12, 138.) Tennessee Disability
Determination Services denied Selby’s claims upon initial review and again following his request
for reconsideration. Selby subsequently requested de novo review of his case by an Administrative

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin in that role. Berryhill is therefore appropriately substituted for Colvin as the defendant in this
action, pursuant to Federal Rule of Civil Procedure 25(d) and 42 U.S.C. § 405(g).

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Referenced hereinafter by page number(s) following the abbreviation ATr.@

Law Judge (“ALJ”). The ALJ heard the case on July 23, 2012, when Selby appeared with counsel
and gave testimony. (Tr. 27–43.) A vocational expert also testified at the hearing. At the conclusion
of the hearing, the ALJ took the matter under advisement until August 21, 2012, when he issued a
written decision finding Selby not disabled. (Tr. 12–21.) That decision contains the following
enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity since January 1, 2009,
the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative joint disease of
the left hip and lumbar radiculopathy (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as defined
in 20 CFR 404.1567(c) and 416.967(c) except the claimant is unable to bend, stoop,
or squat frequently. The claimant is unable to operate foot controls on a frequent
basis. The claimant is unable to handle excessive vibrations. The claimant is unable
to work around heights or moving, dangerous machinery.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
7. The claimant was born on October 11, 1959 and was 49 years old, which is defined
as a younger individual age 18-49, on the alleged disability onset date. The claimant
subsequently changed age category to closely approaching advanced age (20 CFR
404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the
claimant is “not disabled,” whether or not the claimant has transferable job skills
(See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

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10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act,
from January 1, 2009, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).
(Tr. 14, 16, 19–20.)
On September 24, 2013, the Appeals Council denied Selby’s request for review of the
ALJ=s decision (Tr. 1–3), rendering that decision final. This civil action seeking review was timely
filed on November 20, 2013. 42 U.S.C. § 405(g).
II.

Statement of the Facts
The following record review is taken from the Government’s brief (Doc. No. 13, PageID#

292–96): 3
A.

Medical Evidence of Record

On June 16, 2010, Selby established treatment at Cumberland Dermatology for
complaints of spots on his arms (Tr. 227). Selby reported that the spots had been
present for several months; they did not itch or cause pain (Tr. 227), but were sore
(Tr. 228). Selby reported no other medical conditions (Tr. 227), and he denied any
muscle weakness, joint aches, or bone problems (Tr. 228). Scott Stout, a physicians’
assistant-certified (PA Stout), diagnosed actinic keratosis, applied liquid nitrogen
to 13 spots, and instructed Selby to return in four to six weeks if the spots did not
fully resolve (Tr. 227). Selby may have also reported a lesion on his right ankle; he
declined any treatment due to lack of insurance (Tr. 228).
On July 15, 2010, Selby returned to Cumberland Dermatology (Tr. 228). He stated
that some of the spots improved with the liquid nitrogen, but he also admitted to
picking at the areas (Tr. 228). Selby again reported no other medical conditions (Tr.
229). Selby declined a biopsy of the lesion on his right ankle, even though PA Stout
stated that the lesion could be cancerous (Tr. 229). A physical examination showed
no joint swelling or deformity (Tr. 230). PA Stout prescribed a cream and instructed
Selby to return in two to three weeks (Tr. 229–30). Selby expressed concern with
the cost of the medication, and PA Stout informed him that he could have the

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The Court relies upon the Government’s summary of the medical evidence because it is more extensive than
that provided in Selby’s brief (Doc. No. 12-1) and does not conflict with Selby’s statement in any material way.

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prescription compounded at Vital Care Pharmacy (Tr. 230). There is no evidence
in the administrative transcript that Selby returned to Cumberland Dermatology.
On September 21, 2010, Selby visited Matthew Bolton, M.D., with complaints of
left hip pain and left leg numbness (Tr. 205–07). Selby stated that these symptoms
began on May 1, 2010 (Tr. 205). He described the pain as intermittent and stabbing,
and rated the pain as a 7 out of 10 (Tr. 205). He reported worse pain within the past
three days, which coincided with him starting work at a chicken hatchery (Tr. 205).
He reported that he would get moderate hip pain by lunch time, and would have
trouble getting into his truck at the end of the day (Tr. 205). 4 Selby had tenderness
of the sacroiliac joint, mild tenderness with internal rotations of the left leg, and
moderate tenderness with external rotation of that leg (Tr. 206). There was no
tenderness in the right leg, and Selby ambulated without assistance (Tr. 205). Dr.
Bolton diagnosed mild to moderate degenerative joint disease of the left hip,
prescribed Prednisone, and instructed Selby to return to the clinic as needed (Tr.
207). There is no evidence in the administrative transcript that Selby returned to
Dr. Bolton.
On February 14, 2011, Donita Keown, M.D., performed a consultative physical
examination (Tr. 209–11). Selby reported left hip pain as his main problem (Tr.
209). He reported that the pain began four or five years ago and had progressively
gotten worse (Tr. 209). He stated that he got sharp pain out of his lower back and
into the left leg, more so when walking or standing, but also when sitting (Tr. 209).
He was not taking any medications and had not had any injections or other
treatment (Tr. 209). Dr. Keown observed actinic keratotic lesion of the left and right
forearms and dorsal aspects of both hands (Tr. 210). Selby walked with a slight leftsided limp, but he needed no assistive device (Tr. 210). Dr. Keown observed no
impairment “during Romberg test, one-foot stand on right foot, toe lift or heel walk”
(Tr. 211). Selby had full range of motion in the hands, wrists, elbows, shoulders,
hips, knees, and ankles (Tr. 210). A straight leg raise test was negative (Tr. 210).
Left hip flexion was 110 degrees; internal and external rotation were 40 and 50
degrees; and abduction was 40 degrees without complaints (Tr. 211). Dr. Keown
diagnosed chronic low back pain that may be attributable to early degenerative
changes; left hip pain that may be attributable to early degenerative changes; and
mildly diminished left foot pulses (Tr. 211).
On that same day, Dr. Keown completed a Medical Source Statement of Ability to
Do Work-Related Activities (Physical) (Tr. 212–17). Dr. Keown opined that Selby
could occasionally carry 51-100 pounds and frequently lift 51-100 pounds; could
sit eight hours in a work day, with two hours at a time without interruption; could
stand seven hours in a workday, with one hour at a time without interruption; could
walk seven hours in a workday, with one hour at a time without interruption; could
continuously balance and use his hands and feet; could occasionally crouch and
crawl; and could frequently stoop, kneel, and climb (Tr. 212–14).

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Selby notes that he assessed his pain at this time at seven on a scale of ten. (Doc. No. 12-1, PageID# 278.)

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On March 1, 2011, Frank R. Pennington, M.D., a state agency physician, reviewed
the documentary evidence and opined that Selby did not have a severe physical
impairment (Tr. 218–23). Dr. Pennington stated that this opinion was consistent
with Dr. Keown’s examination and Selby’s self-reported activities (Tr. 161–64,
221).
On May 6, 2011, Michael Ryan, M.D., a state agency physician, reviewed the
documentary evidence and agreed with Dr. Pennington’s opinion (Tr. 224–25). Dr.
Ryan stated that there was no additional treatment in the record and that Selby did
not allege a worsening of a previously-documented impairment or allege a new
impairment (Tr. 177, 224).
On May 2, 2012, Pearline Butcher, D.O., performed a disability examination (Tr.
233–37). Selby reported back problems that began at age 16, neck pain that radiated
into the left shoulder that began six months earlier, and shortness of breath that
began seven to nine months earlier (Tr. 233). Dr. Butcher stated that Selby’s blood
pressure was elevated on examination (170/90) (Tr. 234, 236). Dr. Butcher stated
that Selby appeared to be in moderate pain; had a normal gait; had a lesion on the
right leg; had a positive Tinel’s and Phalen’s sign in both hands, grasp was weaker
with the left hand; had neck pain to palpation and limited range of motion; had back
pain to palpation and limited range of motion; and had a positive left straight leg
raise test (Tr. 236). Dr. Butcher diagnosed back pain, neck pain, shortness of breath,
tobacco abuse, elevated blood pressure without hypertension, and chronic pain (Tr.
236–37). Dr. Butcher stated that Selby was not in pristine health and should be
examined by an internist; a gastroenterologist for rectal blood; an orthopedist for
neck pain and possible carpal tunnel syndrome; and a dermatologist for right lower
leg lesion (Tr. 237). Dr. Butcher wondered why there were not more medical
records and stated that Selby could not get the care that he needed due to no income
and no health insurance (Tr. 237).
On that same day, Dr. Butcher completed a Medical Source Statement of Ability to
Do Work-Related Activities (Physical) (Tr. 238–43). Dr. Butcher opined that Selby
could occasionally lift and carry 10 pounds; could not perform the sitting, standing,
and walking requirements for a full workday; had limited use of his hands and feet;
could perform no postural movements except occasional climbing of stairs and
ramps and balancing; and needed to avoid many environmental hazards (Tr. 238–
42). Dr. Butcher opined that these limitations were first present in 2009 (Tr. 243).
B.

Selby’s Hearing Testimony

Selby stated that he had “something wrong with my back and my hip, and when I
walk for any amount of distance, everything on [the left] side starts hurting and
goes numb” (Tr. 31). He was not currently receiving any medical care on a
consistent basis because he did not have the money or insurance (Tr. 31). His last
medical appointment was with Dr. Butcher (Tr. 32). He did not return to other
physicians due to a lack of money (Tr. 32). He estimated that he could stand for
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forty-five minutes and walk from “here to the front of the building” (Tr. 33). He
estimated that he could sit for about an hour because he gets tingling and pain in
his hip and leg (Tr. 33). He stated that he could lift 20 pounds at a time, but could
not do that on a continuous basis (Tr. 33).
C.

Vocational Expert’s Testimony

Katharine Bradford, M.S., testified at the administrative hearing as an impartial
vocational expert (Tr. 36–42, 76). Ms. Bradford was asked to assume an individual
(with the claimant’s age, education, and past work experience) who was limited to
light work with an inability to perform frequent bending and stooping; an inability
to perform frequent squatting; an inability to operate foot controls on a frequent
basis; and an inability to handle excessive vibration (Tr. 37–38). Ms. Bradford
testified that such an individual could perform the occupations of assembler (6,600
jobs in Tennessee and 217,000 jobs nationally); machine tender (2,900 jobs in
Tennessee and 128,000 jobs nationally); and grader/sorter (1,600 jobs in Tennessee
and 63,000 nationally) (Tr. 38). Ms. Bradford stated that the number of jobs would
decrease by 20 percent if the individual was unable to work at heights or around
moving and dangerous machinery (Tr. 38–39).
Ms. Bradford testified that an individual would not be able to work based on Selby’s
hearing testimony or Dr. Butcher’s opinion (Tr. 41–42).
(Doc. No. 13, PageID# 292–96.)
III.

Analysis
A.

Legal Standard

Judicial review of “any final decision of the Commissioner of Social Security made after a
hearing” is authorized by the Social Security Act, which empowers the district court “to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). This Court reviews the final decision of the Commissioner to
determine whether substantial evidence supports the agency’s findings and whether the correct
legal standards were applied. Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016).
“Substantial evidence is less than a preponderance but more than a scintilla; it refers to relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.” Gentry v.

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Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). The Court also reviews the decision for
procedural fairness. “The Social Security Administration has established rules for how an ALJ
must evaluate a disability claim and has made promises to disability applicants as to how their
claims and medical evidence will be reviewed.” Id. at 723. Failure to follow agency rules and
regulations, therefore, “denotes a lack of substantial evidence, even where the conclusion of the
ALJ may be justified based upon the record.” Id. (quoting Cole v. Astrue, 661 F.3d 931, 937 (6th
Cir. 2011)).
The agency’s decision must stand if substantial evidence supports it, even if the record
contains evidence supporting the opposite conclusion. See Hernandez v. Comm’r of Soc. Sec., 644
F. App’x 468, 473 (6th Cir. 2016) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
This Court may not “try the case de novo, resolve conflicts in evidence, or decide questions of
credibility.” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). “However, a substantiality of evidence evaluation
does not permit a selective reading of the record . . . [but] ‘must take into account whatever in the
record fairly detracts from its weight.’” Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 641
(6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)).
B.

The Five-Step Inquiry

The claimant bears the ultimate burden of establishing an entitlement to benefits by proving
his or her “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.” 42 U.S.C.
§ 423(d)(1)(A). The claimant’s “physical or mental impairment” must “result[] from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable

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clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). The Commissioner considers a
claimant’s case under a five-step sequential evaluation process, described by the Sixth Circuit
Court of Appeals as follows:
1. A claimant who is engaging in substantial gainful activity will not be found to
be disabled regardless of medical findings.
2. A claimant who does not have a severe impairment will not be found to be
disabled.
3. A finding of disability will be made without consideration of vocational factors,
if a claimant is not working and is suffering from a severe impairment which
meets the duration requirement and which meets or equals a listed impairment
in Appendix 1 to Subpart P of the Regulations. Claimants with lesser
impairments proceed to step four.
4. A claimant who can perform work that he has done in the past will not be found
to be disabled.
5. If a claimant cannot perform his past work, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed.
Miller, 811 F.3d at 835 n.6; 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden
through step four of proving the existence and severity of the limitations his impairments cause
and the fact that he cannot perform past relevant work; however, at step five, the burden shifts to
the Commissioner to “identify a significant number of jobs in the economy that accommodate the
claimant’s residual functional capacity and vocational profile.” Johnson v. Comm’r of Soc. Sec.,
652 F.3d 646, 651 (6th Cir. 2011).
When determining a claimant’s residual functional capacity (RFC) at steps four and five,
the agency must consider the combined effect of all the claimant’s impairments, mental and
physical, exertional and nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B),
(5)(B); Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R.
§ 404.1545(e)). The agency can carry its burden at the fifth step of the evaluation process by
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relying on the Medical-Vocational Guidelines, otherwise known as “the grids,” but only if a
nonexertional impairment does not significantly limit the claimant, and then only when the
claimant’s characteristics precisely match the characteristics of the applicable grid rule.
See Anderson v. Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010); Wright v. Massanari,
321 F.3d 611, 615–16 (6th Cir. 2003). Otherwise, the grids function only as a guide to the disability
determination. Wright, 321 F.3d at 615–16; see also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th
Cir. 1990). Where the grids do not direct a conclusion as to the claimant’s disability, the agency
must rebut the claimant’s prima facie case with proof of the claimant’s individual qualifications to
perform specific jobs, typically through vocational expert testimony. Anderson, 406 F. App’x at
35; see Wright, 321 F.3d at 616 (quoting SSR 83-12, 1983 WL 31253, *4 (Jan. 1, 1983)).
C.

Plaintiff’s Statement of Errors
1.

Independent Medical Examiner Dr. Butcher’s Opinion

Selby first argues that the ALJ erred in rejecting the opinion of the independent medical
examiner, Dr. Butcher, without providing any reasonable basis for doing so. The ALJ first
considered Dr. Butcher’s May 2, 2012 report in the context of determining Selby’s severe
impairments at step two of the sequential evaluation. He found that no medical impairments were
established by Dr. Butcher’s report because the record lacked objective support for, or was
otherwise inconsistent with, the impairments that Dr. Butcher diagnosed. (Tr. 15.) The medical
exhibits that the ALJ weighed against Dr. Butcher’s opinion at step two and again in determining
Selby’s RFC are the September 21, 2010 treatment note of Dr. Bolton and the February 14, 2011
report of consultative examiner Dr. Keown (the only other clinical evidence in a sparse medical
record). (Tr. 15, 17–19.)

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As the ALJ noted, Selby presented to Dr. Bolton complaining of the recent onset of
intermittent pain in his left hip and numbness in his left leg and was diagnosed with mild-tomoderate degenerative joint disease of the left hip. (Tr. 207.) Dr. Bolton prescribed the steroid
Prednisone with instructions for Selby to return to care if the Prednisone did not help. (Id.) Selby
did not return for further treatment with Dr. Bolton. Several months later, when Selby presented
to consultative examiner Dr. Keown for an examination, Dr. Keown opined that, despite a slight
limp and somewhat reduced range of motion in the left hip, Selby apparently did not require any
medication or other treatment for pain and could be expected to perform a significant range of
heavy work. (Tr. 209–17.) Giving some credit to Selby’s subjective complaints, the ALJ
determined that an RFC for medium work with some postural and environmental restrictions was
consistent with the physical examination findings of Dr. Bolton and Dr. Keown. (Tr. 17–19.) In
doing so, he weighed Dr. Keown’s opinion that Selby could perform heavy work, the opinions of
nonexamining consultants that Selby had no severe impairments, and Dr. Butcher’s assessment
that Selby’s exertional, postural, and environmental limitations would preclude even sedentary
work.
The ALJ’s weighing of the conflicting medical opinions and his resulting rejection of
opinions at the extremes in favor of a middle ground is supported by substantial evidence. It is the
province of the ALJ to resolve such evidentiary conflicts, and where the ALJ’s resolution is
supported by substantial evidence, this Court may not second-guess it. Ulman v. Comm’r of Soc.
Sec., 693 F.3d 709, 713–14 (6th Cir. 2012). While Selby argues that Dr. Bolton’s diagnosis of
mild-to-moderate degenerative joint disease is consistent with Dr. Butcher’s assessment of severe
limitations on Selby’s ability to sit, stand, walk, and engage in postural activities, the ALJ properly
found that the two are consistent only to the extent that Selby’s impairments could reasonably be

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expected to have caused the symptoms he experienced. (Tr. 17.) The ALJ found that Selby’s
testimony regarding the limiting effects of those symptoms was not credible, however, to the extent
they conflicted with a medium work RFC. (Id.) Otherwise, the proposition that mild clinical
findings are consistent with severe functional limitations is not supported by this record, and the
ALJ appropriately found Dr. Bolton’s diagnosis and Dr. Butcher’s assessment at odds with one
another.
Moreover, the ALJ sufficiently explained his resolution of the conflict between these items.
An ALJ is not required to give “good reasons” for rejecting the opinion of a one-time consultant
like Dr. Butcher; that procedural mandate extends only to the ALJ’s consideration of a treating
source opinion. Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). The ALJ gave
full consideration to Dr. Butcher’s report, discussing at length her findings and the conflicting
evidence from Dr. Bolton and Dr. Keown. (Tr. 15, 18.) No more particular rationale is required
when determining the weight due to the opinion of a non-treating source. See Norris v. Comm’r
of Soc. Sec., 461 F. App’x 433, 439–40 (6th Cir. 2012). While Selby argues that the ALJ should
have accounted for the fact that his hip and leg conditions progressively worsened and that the
opinions of Dr. Bolton and Dr. Keown were rendered a year or more before that of Dr. Butcher,
he cites no record evidence to support a finding that his limitations worsened significantly in that
time frame. The Court finds no error in the ALJ’s rejection of Dr. Butcher’s opinion. To the extent
that Selby’s remaining arguments regarding the ALJ’s determination of his credibility and his RFC
rely upon Dr. Butcher’s, those arguments must fail. (Doc. No. 12-1, PageID# 285–89.)
2.

The ALJ’s Determination of Selby’s Credibility

Selby further asserts that by finding his allegations less than fully credible, in part because
“[t]he record shows very little medical treatment” (Tr. 17), the ALJ failed to account for Selby’s

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explanation that his inability to afford medical treatment caused the scarcity of medical evidence
in this case. However, the ALJ did take account of Selby’s testimony that, “[w]ith regard to his
lack of medical care, [Selby] testified that he has no insurance and no money.” (Tr. 16–17.) The
ALJ found, however, that “the medical evidence that is in the record does not support the severity
of the symptoms and limitations alleged by the claimant.” (Tr. 17.) The ALJ thus determined
Selby’s credible symptoms and RFC based on the evidence that Selby did present, not on any lack
thereof. (Tr. 19.) Accordingly, the ALJ did not improperly view Selby’s failure to seek treatment
as conflicting with evidence that would otherwise support his disability claim. Instead, he found
that Selby “failed to meet his burden of establishing the existence of a disability, a burden for
which the Commissioner requires ‘medical signs and laboratory findings.’” Watters v. Comm’r of
Soc. Sec., 530 F. App’x 419, 424 (6th Cir. 2013).
3.

The ALJ’s RFC Determination

Finally, citing SSR 96-8p, Selby argues that the RFC determination should have included
a function-by-function assessment of his exertional abilities in order to resolve the conflict between
Dr. Butcher’s assessment and the ALJ’s finding of his capacity for medium exertional work. While
SSR 96-8p “requires a ‘function-by-function evaluation’ to determine a claimant’s RFC, case law
does not require the ALJ to discuss those capacities for which no limitation is alleged.” Delgado
v. Comm'r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. 2002). Instead, “the ALJ need only
articulate how the evidence in the record supports the RFC determination, discuss the claimant’s
ability to perform sustained work-related activities, and explain the resolution of any
inconsistencies in the record.” Id. (quoting Bencivengo v. Comm’r of Soc. Sec., 251 F.3d 153
(table), No. 00-1995 (3d Cir. Dec. 19, 2000)). As discussed above, the ALJ addressed Selby’s
exertional and nonexertional capabilities, making reference to the evidence that supported his

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conclusions. The ALJ’s RFC determination evidenced his sufficient consideration of Selby’s
functional abilities and complied with SSR 96-8p. See Rudd v. Comm’r of Soc. Sec., 531 F. App’x
719, 729 (6th Cir. 2013).
In sum, the Court finds that Selby’s allegations of error do not warrant reversal in this
case. The decision of the ALJ is supported by substantial evidence on the record as a whole. That
decision will therefore be affirmed.
IV.

Conclusion

In light of the foregoing, Selby=s Motion for Judgment on the Administrative Record
(Doc. No. 12) will be DENIED and the decision of the Commissioner will be AFFIRMED.
An appropriate Order will enter.

____________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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