Ashmore v. Social Security Administration

Filing 23

REPORT AND RECOMMENDATION: For the reasons stated below, the undersigned recommends that Plaintiff's "Motion for Judgment Based On The Administrative Record" 20 be GRANTED, and that the decision of the Commissioner be REMANDED. Signed by Magistrate Judge Jeffery S. Frensley on 6/12/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION

KEVIN ASHMORE,

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Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

Civil Action No. 1:17-cv-00100
Judge Crenshaw / Frensley

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the
final decision of the Commissioner of Social Security denying Plaintiff Disability Insurance
Benefits (“DIB”), as provided under Title II of the Social Security Act (“the Act”). The case is
currently pending on Plaintiff’s “Motion for Judgment Based On The Administrative Record.”
Docket No. 20. Plaintiff has incorporated his accompanying Memorandum of Law into his
Motion. Id. Defendant has filed a Response, arguing that the decision of the Commissioner was
supported by substantial evidence and should be affirmed. Docket No. 21. Plaintiff has filed a
Reply. Docket No. 22.
For the reasons stated below, the undersigned recommends that Plaintiff’s “Motion for
Judgment Based On The Administrative Record” be GRANTED, and that the decision of the
Commissioner be REMANDED.

1

I. INTRODUCTION
Plaintiff protectively filed his application for Disability Insurance Benefits (“DIB”) on
June 6, 2014,1 alleging that he had been disabled since January 15, 2010, due to cerebral palsy
and a congenital heart defect. See, e.g., Docket No. 18, Attachment (“TR”), pp. 56, 162.
Plaintiff’s application was denied both initially (TR 81-83) and upon reconsideration (TR 85-86).
Plaintiff subsequently requested (TR 87-88) and received (TR 27-55) a hearing. Plaintiff’s
hearing was conducted on July 12, 2016, by Administrative Law Judge (“ALJ”) John Daughtry.
TR 27. Plaintiff and vocational expert (“VE”), Dr. Stephen Bernard Schnacke, appeared and
testified. TR 30-54.
On September 9, 2016, the ALJ issued a decision unfavorable to Plaintiff, finding that
Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR 1026. Specifically, the ALJ made the following findings of fact:
1.

The claimant last met the insured status requirements of the
Social Security Act on September 30, 2014.

2.

The claimant did not engage in substantial gainful activity
during the period from his alleged onset date of January 15,
2010 through his date last insured of September 30, 2014
(20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the
following severe impairments: mild cerebral palsy with
right sided spasticity and history of interstitial lung disease
(20 CFR 404.1520(c)).

4.

Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or

1

Plaintiff protectively filed for DIB on June 6, 2014. TR 56. The actual filing date for
Plaintiff’s DIB application was on July 17, 2014. TR 150-51.
2

medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
5.

After careful consideration of the entire record, the
undersigned finds that through the date last insured, the
claimant had the residual functional capacity to perform a
range of light work as defined in 20 CFR 404.1567(b) that
was limited to: lifting and carrying up to twenty pounds
occasionally and ten pounds frequently primarily using the
left upper extremity to lift and carry and the right upper
extremity to assist and balance objects; sitting, standing and
walking up to six hours each in eight-hour workdays with
normal breaks; frequent pushing and pulling with the right
upper and lower extremities; occasional kneeling and
crouching; occasional overhead reaching with the right
upper extremity; occasional exposure to extremely cold
temperatures and pulmonary irritants such as dust, fumes,
odors gases and poor ventilation.

6.

Through the date last insured, the claimant was capable of
performing past relevant work as construction
runner/deliverer, [DOT# 230.663-010],
(light/unskilled/SVP 2). This work did not require the
performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565).

7.

The claimant was not under a disability, as defined in the
Social Security Act, at any time from January 15, 2010, the
alleged onset date, through September 30, 2014, the date
last insured (20 CFR 404.1520(f)).

TR 15-22.
On November 7, 2016, Plaintiff timely filed a request for review of the hearing decision.
TR 144. On September 18, 2017, the Appeals Council issued a letter declining to review the case
(TR 1-4), thereby rendering the decision of the ALJ the final decision of the Commissioner.
This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).
If the Commissioner’s findings are supported by substantial evidence, based upon the record as a
3

whole, then these findings are conclusive. Id.
II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of record. Accordingly, the Court will discuss those matters only to the
extent necessary to analyze the parties’ arguments.
III. CONCLUSIONS OF LAW
A. Standard of Review
This Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Sec’y of Health & Human Servs., 945 F.2d 1365, 1369
(6th Cir. 1991). The purpose of this review is to determine: (1) whether substantial evidence
exists in the record to support the Commissioner’s decision, and (2) whether any legal errors
were committed in the process of reaching that decision. Landsaw v. Sec’y of Health & Human
Servs., 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept
as adequate to support the conclusion.” Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389 (6th Cir.
1999), citing Richardson v. Perales, 402 U.S. 389, 401 (1971). “Substantial evidence” has been
further quantified as “more than a mere scintilla of evidence, but less than a preponderance.” Bell
v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996), citing Consol. Edison Co. v. N.L.R.B.,
305 U.S. 197, 229 (1938).
The reviewing court does not substitute its findings of fact for those of the Commissioner
if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different
4

conclusion, the decision of the ALJ must stand if substantial evidence supports the conclusion
reached. Her, 203 F.3d at 389, citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). If the
Commissioner did not consider the record as a whole, however, the Commissioner’s conclusion
is undermined. Hurst v. Sec’y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985),
citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).
In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff’s condition; (2) diagnoses and opinions of
medical experts; (3) subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings At The Administrative Level
The claimant carries the ultimate burden to establish 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 last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful activity” not
only includes previous work performed by Plaintiff, but also, considering Plaintiff’s age,
education, and work experience, any other relevant work that exists in the national economy in
significant numbers regardless of whether such work exists in the immediate area in which
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process summarized as follows:
(1) If the claimant is working and the work constitutes substantial
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gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a “severe”
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it
must be determined whether he or she suffers from one of the
“listed” impairments or its equivalent.2 If a listing is met or
equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level
impairments, it must be determined whether the claimant can
return to the job he or she previously held in light of his or her
residual functional capacity (e.g., what the claimant can still do
despite his or her limitations). By showing a medical condition that
prevents him or her from returning to such past relevant work, the
claimant establishes a prima facie case of disability.
(5) The burden then shifts to the Commissioner to establish the
claimant’s ability to work by proving the existence of a significant
number of jobs in the national economy which the claimant could
perform, given his or her age, experience, education, and residual
functional capacity.
See, e.g., 20 CFR §§ 404.1520, 416.920. See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th
Cir. 1990).
The Commissioner’s burden at the fifth step of the evaluation process can be satisfied by
relying on the medical-vocational guidelines, otherwise known as “the grid,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule. Moon,
923 F.2d at 1181; 20 CFR § 404, Subpt. P, App. 2, Rule 200.00(e)(1), (2). See also Damron v.
Sec’y of Health & Human Servs., 778 F.2d 279, 281-82 (6th Cir. 1985). Otherwise, the grid

2

The Listing of Impairments is found at 20 CFR § 404, Subpt. P, App. 1.
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cannot be used to direct a conclusion, but only as a guide to the disability determination. Id. In
such cases where the grid does not direct a conclusion as to the claimant’s disability, the
Commissioner must rebut the claimant’s prima facie case by coming forward with particularized
proof of the claimant’s individual vocational qualifications to perform specific jobs, which is
typically obtained through vocational expert testimony. See Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity for purposes of the analysis required at stages
four and five above, the Commissioner is required to 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).
C. Plaintiff’s Statement Of Errors
Plaintiff contends that the ALJ improperly considered the evidence, failed to fully and
fairly develop the record, and issued a decision that does not allow for meaningful review
because the ALJ: (1) failed to accord proper weight to the opinion of Plaintiff’s treating
physician; (2) improperly discredited Plaintiff’s subjective complaints; (3) erroneously gave
limited weight to the letter provided by Plaintiff’s father; (4) failed to consider that the treatment
options for cerebral palsy are limited; and (5) determined a residual functional capacity that is not
supported by the medical evidence. Docket No. 20. Accordingly, Plaintiff maintains that,
pursuant to 42 U.S.C. § 405(g), the Commissioner’s decision should be reversed, or in the
alternative, remanded. Id.
Sentence four of § 405(g) states as follows:
The court shall have power to enter, upon the pleadings and
7

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), 1383(c)(3).
“In cases where there is an adequate record, the Secretary’s decision denying benefits can
be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery v.
Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues have been resolved and the record
adequately establishes a plaintiff's entitlement to benefits. Faucher v. Sec’y of Health & Human
Servs., 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir.
1994).
1. ALJ’s Development of the Record
As an initial matter, Plaintiff contends that “the ALJ had the duty to develop the record
fully and fairly.” Docket No. 20 at 11. Plaintiff correctly asserts that the ALJ must fully develop
the record, and for the reasons discussed below, Plaintiff has shown that the ALJ did not do so.
The duty of the ALJ is to “fully and fairly develop the administrative record.” Johnson v.
Sec’y of Health & Human Servs., 794 F.2d 1106, 1111 (6th Cir. 1986). In doing so, the ALJ must
identify the reasons and basis for crediting or rejecting certain items of evidence (see, e.g.,
Morehead Marine Servs. v. Washnock, 135 F.3d 366, 375 (6th Cir. 1998)), as there can be no
meaningful judicial review without an adequate explanation of the factual and legal basis for the
ALJ’s decision (Hyatt Corp. v. N.L.R.B., 939 F.2d 361, 367 (6th Cir. 1991)).
As will be demonstrated below, the ALJ has not met his duty to fully and fairly develop
8

the record. Because the ALJ failed to develop the evidence and adequately explain the reasons
and basis for his conclusions, and because the ALJ’s findings are not supported by “such relevant
evidence as a reasonable mind would accept as adequate to support the conclusion,” the ALJ’s
determination is not supported by substantial evidence. The undersigned therefore recommends
that this action be remanded.
a. Weight the ALJ Accorded to the Opinion of Plaintiff’s Treating Physician
Plaintiff maintains that “the ALJ improperly rejected the opinion of Plaintiff’s treating
physician,” Dr. Joey Hensley. Docket No. 20 at 6. Specifically, Plaintiff contends that the ALJ
erroneously concluded Dr. Hensley’s Medical Source Statement opinion was inconsistent with
the record, and that the ALJ’s explanation was too vague and ambiguous to support this
determination. Id. at 7. Plaintiff argues that the ALJ’s reliance on the opinion of Dr. Larry
McNeil is inappropriate because Dr. McNeil, as a State agency medical consultant, did not
examine Plaintiff, and did not consider Plaintiff’s subjective complaints in rendering his opinion.
Id. at 7-8. Specifically, Plaintiff argues that “it is unclear how the ALJ could simultaneously find
Plaintiff in part credible, while at the same time rely on an opinion that failed to account for
Plaintiff’s testimony.” Id. at 8.
Defendant responds that the ALJ appropriately accorded little weight to Dr. Hensley’s
opinion. Docket No. 21. Defendant submits that the ALJ correctly determined that “Dr.
Hensley’s suggested limitations appear to be extreme” and inconsistent with the record based
upon Plaintiff’s subsequently reported daily activities, conservative treatment of his condition,
lack of treatment since June 2014, the temporary nature of Plaintiff’s Rocky Mountain Spotted
Fever, and the opinions of two State agency medical consultants, Drs. Sonia Williams and Larry
9

McNeil. Id. at 11-12, 14-16. Defendant argues that, based on the pain and range of motion
questionnaires completed by Dr. Hensley on August 1, 2014, “the mildly limited range of motion
on only the right side does not account for Dr. Hensley’s opinion that Plaintiff—who Dr. Hensley
acknowledged experienced no pain and only mild fatigue—could (as one example) only sit for a
total of two hours during the day.” Id. at 13, citing TR 250-52, 332-33. Defendant contends that
the ALJ’s reasons for discounting Dr. Hensley’s opinion were “supported by the evidence in the
case record” and were “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.” Id.
at 15, citing 20 C.F.R. § 404.1527(c)(2); SSR 96-2p; Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 376 (6th Cir. 2013). Defendant further argues that “[b]oth Dr. McNeil and the ALJ found
that Plaintiff’s subjective complaints were generally consistent with the RFC [residual functional
capacity],” and “the ALJ found that to the extent Plaintiff argued that his limitations were
greater, they were undermined by other evidence in the record.” Docket No. 21 at 16.
Plaintiff replies that the ALJ’s analysis of his past treatment as grounds to discount his
credibility failed to account for the nature of his condition. Docket No. 22 at 3. Plaintiff notes
that “because cerebral palsy is an injury to the brain, treatment is limited,” and that as a result,
the “conservative treatment” Plaintiff received does not undermine his suggested limitations. Id.
Plaintiff further replies that the ALJ’s reliance on Dr. McNeil’s opinion is problematic because
Dr. McNeil did not consider Plaintiff’s subjective complaints. Id. at 4.
With regard to the evaluation of medical evidence, the Code of Federal Regulations
states:
Regardless of its source, we will evaluate every medical opinion
10

we receive. Unless we give a treating source’s opinion controlling
weight under paragraph (c)(2) of this section, we consider all of the
following factors in deciding the weight we give to any medical
opinion.
(1) Examining relationship. Generally, we give more
weight to the opinion of a source who has examined you than to
the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight
to opinions from your treating sources, since these sources are
likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your 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. If we find that a treating
source’s opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record, we will give it
controlling weight. When we do not give the treating source’s
opinion controlling weight, we apply the factors listed in
paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the
factors in paragraphs (c)(3) through (c)(6) of this section in
determining the weight to give the opinion . . . .
(3) Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly medical signs
and laboratory findings, the more weight we will give that opinion.
The better an explanation a source provides for an opinion, the
more weight we will give that opinion . . . .
(4) Consistency. Generally, the more consistent an opinion
is with the record as a whole, the more weight we will give to that
opinion.
(5) Specialization. We generally give more weight to the
opinion of a specialist about medical issues related to his or her
area of specialty than to the opinion of a source who is not a
specialist.
...

11

20 CFR § 416.927(c) (emphasis added). See also 20 CFR § 404.1527(c).
The ALJ must articulate the reasons underlying his decision to give a medical opinion a
specific amount of weight.3 See, e.g., 20 CFR § 404.1527(d); Allen v. Comm’r of Soc. Sec., 561
F.3d 646 (6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The
reasons must be supported by the evidence and must be sufficiently specific so as to make clear
to any subsequent reviewers the weight the ALJ gave to the treating source medical opinion and
the reasons for that weight. SSR 96-2p.
The Sixth Circuit has held that, “[p]rovided that they are based on sufficient medical data,
the medical opinions and diagnoses of treating physicians are generally accorded substantial
deference, and if the opinions are uncontradicted, complete deference.” Howard v. Comm’r of
Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002), quoting Harris v. Heckler, 756 F.2d 431, 435 (6th
Cir. 1985). If the ALJ rejects the opinion of a treating source, however, he is required to
articulate some basis for rejecting the opinion. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir.
1987). The Code of Federal Regulations defines a “treating source” as:
[Y]our own physician, psychologist, or other acceptable medical
source who provides you or has provided you, with medical
treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.
20 CFR § 404.1502.
3

There are circumstances when an ALJ’s failure to articulate good reasons for the weight
accorded to medical opinions may constitute harmless error: (1) if a treating source opinion is so
patently deficient that the ALJ could not possibly credit it; (2) if the ALJ adopts the opinion or
makes findings consistent with the opinion; and/or (3) if the ALJ has complied with the goal of
20 CFR § 1527(d), by analyzing the physician’s contradictory opinions or by analyzing other
opinions of record. See, e.g., Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir.
2010); Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 470-72 (6th Cir. 2006); Hall v. Comm’r
of Soc. Sec., 148 F. App’x 456, 464 (6th Cir. 2006).
12

The ALJ in the instant action discussed the medical records and opinions of Plaintiff’s
treating physician, Dr. Joey Hensley, as follows:
On September 17, 2014, Joey Hensley, M.D., the claimant’s
primary care physician, provided a medical source statement
regarding the claimant’s physical limitations. He suggested that the
claimant was unable to lift any objects, could stand and walk up to
one-hour total in eight-hour workdays and only in thirty-minute
increments, could sit up to two hours in an eight-hour workdays
[sic] and only in segments of thirty minutes; could occasionally
perform both fine and gross manipulative activities with the left
hand but none with the right hand, could never raise his right arm
above shoulder level, could not operate a motor vehicle and could
not work around dangerous equipment, could have frequent
exposure to noise, could have occasional exposure to heat, cold,
dust, smoke and fumes, could never bend, stoop or balance, and
would be absent from work four or more days each month due to
his impairment related symptoms (Exhibit 6F).
As seen above, the claimant was hospitalized in June 2014, after
sustaining a tick bite. On September 17, 2014, Dr. Hensley
provided an assessment pertaining to weakness involving the
claimant’s upper and lower right extremities, which reportedly
complicated the cerebral palsy however, it is noted that these
complications were only temporary. The evidence suggests that Dr.
Hensley last treated the claimant in June 2014, immediately after
the hospitalization. Subsequently, the claimant has not required
significant treatment for his alleged impairments. Although Dr.
Hensley has treated the claimant in the past and has noted the
claimant’s mild cerebral palsy, his treatment involved infrequent
office visits that have been more for general conditions such [sic]
bronchitis, sinusitis, pharyngitis (Exhibit 2F, 10F). Dr. Hensley’s
suggested limitations appear to be extreme and are inconsistent
with the record considered in its entirety including the claimant’s
subsequently reported daily activities, lack of significant treatment
since around June 2014 and the well supported opinion of Dr.
McNeil who reviewed the entire record in 2015. Therefore, the
undersigned assigns little weight to Dr. Hensley’s opinion.
TR 18-19 (emphasis added).
An ALJ may also consider the opinion of a non-examining physician designated by the
13

Secretary in determining whether a claimant has medically determinable impairments. Reynolds
v. Sec’y of Health & Human Servs., 707 F.2d 927, 930 (6th Cir. 1983). The ALJ addressed the
medical opinion of non-examining physician Dr. Larry McNeil as follows:
On March 30, 2015, Larry McNeil, M.D., a State agency medical
consultant, viewed the medical evidence. Dr. McNeil opined that
the claimant retained the capacity to lift and carry up to twenty-five
pounds occasionally and ten pounds frequently. He stated the
claimant was capable of standing and walking up to six hours total
in an eight-hour workday with normal breaks. He noted the
claimant could sit up to six hours in an eight-hour workday. He
indicated the claimant suffered limitations pushing and pulling
with the right upper and lower extremities. He reported the
claimant could frequently push and pull with the right upper and
lower extremities. Dr. McNeil stated the claimant could frequently
climb ramps, stairs, balance, stoop and crawl but occasionally
kneel and crouch. He noted the claimant could never climb ladders,
ropes or scaffolds. He indicated the claimant suffered limitations
reaching in any direction including overhead with the right upper
extremity. He concluded the claimant must avoid concentrated
exposure to extreme cold, fumes, odors, dusts, gases, poor
ventilation and hazards such as machinery and heights (Exhibit
5A).
Dr. McNeil is familiar with the disability process and is considered
an expert in his field. His assessment is generally consistent with
the medical evidence of record including treatment notes provided
by Dr. Lawrence, which document some right sided spasticity and
weakness. The record indicates the claimant is left hand dominant
and would primarily lift and carry objects with the upper left
extremity. Likewise, the respiratory limitations are consistent with
the radiological test results of the claimant’s lungs, as seen above
(Exhibit 3F). Therefore, the undersigned assigns significant weight
Dr. McNeil’s opinion.
TR 19 (emphasis added).
The ALJ also addressed the medical opinion of state agency physician Dr. Sonia Williams
as follows:

14

On September 4, 2014, Sonia Williams, M.D. a State agency
consultant, provided a residual functional capacity assessment. She
opined the claimant retained the capacity to lift and carry up to
twenty pounds occasionally and ten pounds frequently. She stated
the claimant was capable of standing and walking up to six hours
total in an eight-hour workday with normal breaks. She noted the
claimant was able to sit up to six hours total in an eight-hour
workday. She indicated the claimant could engage in unlimited
pushing and pulling including the operation of hand and foot
controls. She reported the claimant could frequently climb ramps,
stairs, balance, stoop, crouch and crawl but occasionally climb
ladders, ropes and scaffolds. She concluded the claimant must
avoid concentrated exposure to hazards such as machinery and
heights (Exhibit 2A). Dr. Williams’ opinion is generally consistent
with the evidence and is given partial weight to the extent that it
supports and aligns with the claimant’s determined residual
functional capacity. As to the light lifting and carrying restrictions,
treatment notes document some spasticity and weakness involving
the right upper and lower extremities that necessitate (Exhibits 2F
and 3F) limitation of activity along the right side consistent with
the claimant’s determined residual functional capacity.
TR 18 (emphasis added).
Dr. Hensley treated Plaintiff for an extensive period of time, a fact that would justify the
ALJ’s according greater weight to his opinion than to other opinions, as long as that opinion was
supported by medically acceptable clinical and laboratory diagnostic techniques, and consistent
with the evidence of record. As the ALJ correctly explained however, Dr. Hensley’s opinion
contradicts other substantial evidence in the record, including the medical opinions of Drs.
Williams and McNeil, the lack of significant treatment for Plaintiff’s alleged disability,
Plaintiff’s infrequent visits to Dr. Hensley for only general conditions, and Plaintiff’s reported
daily activities. The ALJ, therefore, was not bound to accord greater weight to Dr. Hensley’s
medical source statement opinion.
Additionally, Plaintiff argues that the ALJ improperly relied on Dr. McNeil’s opinion
15

because Dr. McNeil did not consider Plaintiff’s subjective complaints. Docket No. 20 at 8.
Contrary to Plaintiff’s assertion, Dr. McNeil did address the subjective complaints of Plaintiff in
his consultative examination report. TR 71-75. Dr. McNeil indicated “Yes” as to whether “one or
more of the individual’s medically determinable impairment(s) (MDI(s)) [could] reasonably be
expected to produce the individual’s pain or other symptoms,” and “Yes” as to whether “the
individual’s statements about the intensity, persistence, and functionally limiting effects of the
symptoms [could be] substantiated by the objective medical evidence alone.” TR 71. Thus, the
ALJ did properly rely on the opinion of Dr. McNeil after weighing his opinion against the other
medical evidence. As the ALJ discussed above, Dr. McNeil’s opinion was consistent with other
medical evidence in the record, and the ALJ appropriately explained his rationale for according
Dr. McNeil’s opinion “significant weight.”
As the Regulations state, the ALJ is not required to give controlling weight to a treating
physician’s evaluation when that evaluation is inconsistent with other substantial evidence in the
record. See 20 CFR § 416.927(d)(2); 20 CFR § 404.1527(d)(2). Instead, when there is
contradictory evidence, the treating physician’s opinion is weighed against the contradictory
evidence under the criteria listed above. Id. When the opinions are inconsistent with each other,
the final decision regarding the weight to be given to the differing opinions lies with the
Commissioner. 20 CFR § 416.927(e)(2). The ALJ in the instant action considered the evidence
of record, properly accorded little weight to Dr. Hensley’s opinion, and explained his reasons
therefor. Because Dr. Hensley’s opinion was inconsistent with other substantial evidence in the
record, the Regulations do not mandate that the ALJ accord Dr. Hensley’s evaluation controlling
weight. Accordingly, Plaintiff’s argument fails.
16

b. ALJ’s Determination of Plaintiff’s Credibility and Subjective Complaints
Plaintiff contends that in finding that his subjective complaints were not fully credible,
the ALJ did not appropriately address how the “effects of cerebral palsy on his right extremities
impair his ability to work.” Docket No. 20 at 10. Plaintiff submits that none of his daily activities
would support a finding that he could engage in full-time work. Id. Plaintiff contends “the ALJ
failed to consider the nature of Plaintiff’s illness” in finding that limited past treatment weighed
against Plaintiff’s credibility because “cerebral palsy is caused by injury to the brain,” and “its
effects are permanent, meaning treatment is limited.” Id. at 10-11. Plaintiff maintains that the
ALJ improperly weighed Plaintiff’s testimony, the statement by Plaintiff’s father, and Dr.
Hensley’s consultative examination findings. Id. at 9-11. Plaintiff additionally argues the ALJ
failed to consider the nature of Plaintiff’s prior work as “sympathetic employment” in
determining Plaintiff could return to his prior work. Id. at 11-12. Plaintiff further argues that “it
is not clear from the ALJ’s analysis what part of Plaintiff’s testimony was contradicted by the
evidence. Instead of providing a meaningful analysis, the ALJ relied on generic boilerplate
language.” Id. at 11.
Defendant responds that the ALJ properly evaluated Plaintiff’s subjective complaints.
Docket No. 21. Defendant submits that the ALJ explained what evidence he found to be
inconsistent with the extent of Plaintiff’s alleged limitations, “including the objective medical
evidence, Plaintiff’s minimal and conservative treatment, Plaintiff’s daily activities, Plaintiff’s
part-time work, Plaintiff’s reasons for leaving employment, evidence that Plaintiff worked with
these impairments prior to the alleged onset date of disability, the medical opinions, and third
party reports.” Id. at 16-17. Defendant maintains “[the] ALJ explained the rationale for his
17

credibility determination and did not merely rely on boilerplate language as Plaintiff suggests.”
Id. at 17. Defendant argues that “[the] ALJ appropriately noted that the objective medical
evidence only showed some mild findings on the right side,” which warranted concluding that
Plaintiff complaint’s were only partially credible. Id. at 17-18. Defendant contends that the ALJ
“did not rely solely on Plaintiff’s reported activities of daily living to determine that Plaintiff
could work, but properly considered the inconsistency between Plaintiff’s alleged limitations and
his ability to perform a number of activities of daily living as one factor in the credibility
analysis.” Id. at 18.
Defendant further contends that Plaintiff’s argument—that treatment for cerebral palsy is
limited—“is undermined by the fact that he had cerebral palsy since age one, which the ALJ
recognized, and had been able to work for more than 10 years with the condition.” Id. at 19.
Defendant submits that Plaintiff “sought only infrequent care for conditions such as bronchitis,
sinusitis, and pharyngitis,” and that “although Plaintiff stopped working in early 2010, he
testified at his administrative hearing that ‘it all started back when I had a tick bite in 2014,'
which undermines his allegation that his cerebral palsy resulted in work limitations.” Id. at 20,
citing TR 35-36. Additionally, Defendant argues the ALJ’s analysis was not deficient with regard
to the testimony of Plaintiff’s father, and that “although Plaintiff contends that his ten years of
employment came with significant accommodations from his father, this is insufficient to support
his request for remand” because the ALJ properly determined Plaintiff could perform other work
under the regulations. Id. at 21.
Plaintiff replies that “the lack of analysis by the ALJ does not allow a reviewing court to
discern the ALJ’s rational.” Docket No. 22 at 2. Plaintiff maintains that: (1) “the ALJ’s
18

superficial analysis of the medical record in no way contradicted Plaintiff’s testimony”; (2) “the
ALJ failed to consider Plaintiff’s financial situation when he characterized Plaintiff’s treatment
as ‘conservative’”; and (3) “Plaintiff’s work history does not undercut his complaints related to
cerebral palsy . . . .” Id. Plaintiff further argues that “none of Plaintiff’s activities would support a
finding that he was capable of full-time work.” Id. at 3.
The Sixth Circuit has set forth the following criteria for assessing a plaintiff’s subjective
allegations, including pain:
[S]ubjective allegations of disabling symptoms, including pain,
cannot alone support a finding of disability . . . . [T]here must be
evidence of an underlying medical condition and (1) there must be
objective medical evidence to confirm the severity of the alleged
pain arising from the condition or (2) the objectively determined
medical condition must be of a severity which can reasonably be
expected to give rise to the alleged pain.
Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 852-53 (6th Cir. 1986), quoting S.
Rep. No. 466, 98th Cong., 2d Sess. 24 (emphasis added); see also 20 CFR §§ 404.1529, 416.929
(“statements about your pain or other symptoms will not alone establish that you are
disabled . . . .”); Moon v. Sullivan, 923 F.2d 1175, 1182-83 (6th Cir. 1990) (“though Moon
alleges fully disabling and debilitating symptomatology, the ALJ may distrust a claimant’s
allegations . . . if the subjective allegations, the ALJ’s personal observations, and the objective
medical evidence contradict each other.”). Moreover, “[a]llegations of pain . . . do not constitute
a disability, unless the pain is of such a debilitating degree that it prevents an individual from
participating in substantial gainful employment.” Bradley v. Sec’y of Health & Human Servs.,
862 F.2d 1224, 1227 (6th Cir. 1988).
When analyzing the claimant’s subjective complaints of pain, the ALJ must also consider
19

the following factors and how they relate to the medical and other evidence in the record: the
claimant’s daily activities; the location, duration, frequency, and intensity of claimant’s pain; the
precipitating and aggravating factors; the type, dosage, and effect of medication; and the other
treatment or measures to relieve pain. See Felisky v. Bowen, 35 F.3d 1027, 1039 (6th Cir. 1994),
construing 20 CFR § 404.1529(c)(2). After evaluating these factors in conjunction with the
evidence in the record, and by making personal observations of the claimant at the hearing, an
ALJ may determine that a claimant’s subjective complaints of pain and other disabling symptoms
are not credible. See, e.g., Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997);
Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 230 (6th Cir. 1990); and Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981).
The ALJ in the case at bar ultimately found Plaintiff’s complaints regarding the severity
of his impairment and functional limitations to be partially credible. TR 20. The ALJ discussed
the evidence of Plaintiff’s subjective complaints and explained his rationale for finding
Plaintiff’s complaints to be partially credible as follows:
The claimant was 42 years of age with a twelfth grade education at
the time of his July 12, 2016, disability hearing. He alleges
disability due to complications from cerebral palsy with right sided
spasticity and history of interstitial lung disease. He maintains his
condition is progressively getting worse despite treatment.
However, as seen below, medical records fail to substantiate the
claimant’s complaints.
The claimant was a year old when he received transposition of the
great arteries, which was complicated by respiratory failure that
resulted in anoxic brain injury and cerebral palsy with spasticity in
the upper and lower right extremities (Exhibits 1F and 3F).

20

In 2004,4 the claimant presented to Joseph S. Hensley, M.D., a
primary care physician, for further evaluation of his condition.
Upon presentation, he reported a remote history of respiratory
complications but denied chest pain. X-rays of the claimant’s lungs
performed on June 6, 2014, showed the presence of a moderate
honeycombing characteristic of interstitial fibrotic scarring in the
left lung; however, no significant changes were noted when
compared to radiological test results performed in August 2005
(Exhibit 3F page 23).
An examination of the claimant’s bilateral extremities only
revealed slightly decreased ranges of motion of the right shoulder,
elbow, hips and knee. The claimant stated this condition
significantly limited his ability to engage in work activity;
however, no medications have been prescribed for this condition
nor has he presented to the emergency department with any
complications during the relevant period in question. The evidence
indicates that treatment has been quite limited. In fact, the claimant
testified that he only presented to Dr. Hensley for an annual
checkup. It should also be noted the claimant testified he was left
hand dominant (Testimony and Exhibits 3E and 2F).
...
On June 18, 2015, Malvin Ashmore, the claimant’s father,
provided a letter that was supportive of the claimant’s allegations
of disability. Mr. Ashmore reported his opinion regarding physical
difficulties that the claimant experiences on a daily basis. (Exhibit
9E). Such statements are not from accepted medical experts under
Social Security Regulations, but are lay opinions and observations
of a claimant’s functioning that must be considered. (SSR-0603p)[.] These opinions are based upon casual observation, rather
than objective medical evidence and testing. The observations of
such layperson(s) certainly do not outweigh the opinions of
medically acceptable sources. Ultimately, Mr. Ashmore’s
statements are unpersuasive for the same reasons that the
claimant’s own allegations do not fully persuade the undersigned.
Accordingly, Mr. Ashmore’s statements are given limited weight
in determining the claimant’s residual functional capacity.
4

Although the ALJ, in his hearing decision, states that Plaintiff’s presentation to Dr.
Hensley took place “[i]n 2004" (TR 18), the record indicates that the correct date for this visit is
June 18, 2014 (TR 250). The ALJ’s misstatement of the year appears to be a typographical error,
and is inapposite to the issues before this court.
21

After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could
reasonably be expected to cause some 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.
The undersigned finds the claimant experiences some limitations
but only to the extent described in the residual functional capacity
above. For instance, right sided spasticity and weakness limits him
to occasional overhead reaching with the right arm.
In sum, the claimant’s allegations regarding the nature and severity
of his impairment-related symptoms and functional limitations are
partially credible. While the medical and other evidence of record
supports some of the allegations regarding these symptoms, the
allegations regarding their severity, and the related functional
restrictions, are not supported. The undersigned has carefully read
and considered all the evidence of record and finds the residual
functional capacity set forth above is more consistent with the
appropriate medical findings and the overall evidence of record
than the allegations made by the claimant. The claimant’s
diagnosed mild cerebral palsy with right sided spasticity and
history of interstitial lung disease merit limitations within a light
exertional range that was limited to: lifting and carrying up to
twenty pounds occasionally and ten pounds frequently primarily
using the left upper extremity to lift and carry and the right upper
extremity to assist and balance objects; sitting, standing and
walking up to six hours each in eight-hour workdays with normal
breaks; frequent pushing and pulling with the right upper and lower
extremities; occasional kneeling and crouching; occasional
overhead reaching with the right upper extremity; occasional
exposure to extremely cold temperatures and pulmonary irritants
such as dust, fumes, odors gases and poor ventilation.
TR 17-18, 19-20 (emphasis added).
As can be seen above, the ALJ’s decision specifically addresses not only the medical
evidence and the letter from Plaintiff’s father, but also Plaintiff’s testimony and his subjective
claims, clearly indicating that these factors were considered. TR 17-18, 19-20. The ALJ’s
22

articulated rationale demonstrates that, although there is evidence which could support Plaintiff’s
subjective complaints, the ALJ chose to rely on evidence that was inconsistent with Plaintiff’s
allegations. This is within the ALJ’s province.
The ALJ, when evaluating the entirety of the evidence, is entitled to weigh the objective
medical evidence against Plaintiff’s subjective claims of pain and reach a credibility
determination. See, e.g., Walters, 127 F.3d at 531; Kirk, 667 F.2d at 538 (6th Cir. 1981). An
ALJ’s findings regarding a claimant’s credibility are to be accorded great weight and deference,
particularly because the ALJ is charged with the duty of observing the claimant’s demeanor and
credibility. Walters, 127 F.3d at 531, citing Villarreal v. Sec’y of Health & Human Servs., 818
F.2d 461, 463 (6th Cir. 1987). Discounting credibility is appropriate when the ALJ finds
contradictions among the medical reports, the claimant’s testimony, the claimant’s daily
activities, and other evidence. See Walters, 127 F.3d at 531, citing Bradley, 862 F.2d at 1227; cf
King v. Heckler, 742 F.2d 968, 974-75 (6th Cir. 1984); and Siterlet v. Sec’y of Health & Human
Servs., 823 F.2d 918, 921 (6th Cir. 1987). If the ALJ rejects a claimant’s testimony as not
credible, however, the ALJ must clearly state the reasons for discounting a claimant’s testimony
(see Felisky, 35 F.3d at 1036), and the reasons must be supported by the record. See King, 742
F.2d at 975.
As discussed above, after assessing all of the medical and testimonial evidence, the ALJ
ultimately found Plaintiff’s complaints regarding the severity of his impairment and functional
limitations to be partially credible. TR 20. In making this determination, the ALJ observed
Plaintiff during his hearing, assessed the medical records, and reached a reasoned decision. The
decision not to accord full credibility to Plaintiff’s allegations was proper. Therefore, this claim
23

fails.
c. ALJ’s Consideration of the Letter Provided by Plaintiff’s Father
Plaintiff maintains that the ALJ erred in giving limited weight to the letter provided by
Plaintiff’s father. Docket No. 20. Specifically, Plaintiff contends that the “ALJ neglected to
consider that Plaintiff’s father had the opportunity to observe Plaintiff in different settings,” and
further failed to consider that “[n]ot only did Plaintiff live with his father, but he was also
employed by him.” Id. at 11. Plaintiff argues that the letter from his father indicated that
“Plaintiff has always struggled with weakness, and that the tick-borne illness had caused a
significant deterioration in Plaintiff’s energy,” but that “[n]evertheless, the ALJ erroneously
dismissed this evidence.” Id.
Defendant responds that “the ALJ appropriately considered the testimony of Plaintiff’s
father, found it to be not entirely credible, and gave it limited weight.” Docket No. 21 at 21.
Defendant argues that “although Plaintiff contends that his ten years of employment came with
significant accommodations from his father, this is insufficient to support his request for
remand.” Id. Defendant contends that “[b]ecause the ALJ properly determined that Plaintiff could
perform other work under the regulations, the vocational factors identified by Plaintiff do not
undermine the ALJ’s finding.” Id. Defendant further contends that the ALJ appropriately
discounted the father’s opinion on the effects of Plaintiff’s Rocky Mountain Spotted Fever,
noting that “[t]hough Plaintiff reported significant fatigue from the tick bite, this is undermined
by his report to Dr. Hensley in June 2014, that he ‘felt better now,’ as well as Dr. Hensley’s
assessment that Plaintiff’s Rocky Mountain Spotted Fever had resolved.” Id. at 20-21, citing TR
254.
24

Plaintiff replies that he was provided “numerous accommodations” while he was working
for his father, and that “[c]onsequently, [his] work history does not undercut his complaints
related to cerebral palsy, if anything, his work history, when viewed in context, corroborates
Plaintiff’s testimony.” Docket No. 22 at 2.
With regard to the evaluation of evidence from nonmedical sources, the Code of Federal
Regulations states:
Evidence from nonmedical sources is any information or
statement(s) from a nonmedical source (including you) about any
issue in your claim. We may receive evidence from nonmedical
sources either directly from the nonmedical source or indirectly,
such as from forms we receive and our administrative record.
20 CFR § 404.1513(a)(4).
Additionally, under the heading "Explanation of the Consideration Given to Opinions
from ‘Other Sources,'" SSR 06-03p states as follows:
Since there is a requirement to consider all relevant evidence in an
individual's case record, the case record should reflect the
consideration of opinions from medical sources who are not
"acceptable medical sources" and from "non-medical sources" who
have seen the claimant in their professional capacity. Although
there is a distinction between what an adjudicator must consider
and what the adjudicator must explain in the disability
determination or decision, the adjudicator generally should explain
the weight given to opinions from these "other 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. In addition, when
an adjudicator determines that an opinion from such a source is
entitled to greater weight than a medical opinion from a treating
source, the adjudicator must explain the reasons in the notice of
decision in hearing cases and in the notice of determination (that is,
in the personalized disability notice) at the initial and
reconsideration levels, if the determination is less than fully
25

favorable.
SSR 06-03p (emphasis added).
As has been quoted above, the ALJ discussed the letter from Plaintiff’s father as follows:
On June 18, 2015, Malvin Ashmore, the claimant’s father,
provided a letter that was supportive of the claimant’s allegations
of disability. Mr. Ashmore reported his opinion regarding physical
difficulties that the claimant experiences on a daily basis. (Exhibit
9E). Such statements are not from accepted medical experts under
Social Security Regulations, but are lay opinions and observations
of a claimant’s functioning that must be considered. (SSR-0603p)[.] These opinions are based upon casual observation, rather
than objective medical evidence and testing. The observations of
such layperson(s) certainly do not outweigh the opinions of
medically acceptable sources. Ultimately, Mr. Ashmore’s
statements are unpersuasive for the same reasons that the
claimant’s own allegations do not fully persuade the undersigned.
Accordingly, Mr. Ashmore’s statements are given limited weight
in determining the claimant’s residual functional capacity.
TR 19-20 (emphasis added).
Although the ALJ reasoned that the letter from Plaintiff’s father was “unpersuasive for
the same reasons that claimant’s own allegations do not fully persuade the undersigned,” the ALJ
did not mention, much less discuss that Plaintiff’s father was his only past employer; that he
provided Plaintiff with “sympathetic employment”; that he made accommodations for Plaintiff;
and that he was therefore in a unique position to shed light on Plaintiff’s limitations. TR 20.
Because the ALJ did not mention, much less discuss, these factors, the undersigned
cannot determine whether the ALJ considered them when deciding to accord the letter limited
weight. While it is within the province of the ALJ to accord less weight to nonmedical evidence
that is inconsistent with the medical evidence, the ALJ must explain his rationale for doing so,
and the ALJ’s explanation must allow for meaningful judicial review. Because the undersigned
26

cannot determine whether the ALJ considered these factors when according the letter limited
weight, the undersigned recommends that this action be remanded for further development of the
record with regard to the ALJ’s consideration of the letter from Plaintiff’s father.
d. ALJ’s Consideration of the Nature of Cerebral Palsy
Plaintiff maintains that, in discounting Plaintiff’s credibility and alleged extent of
limitations because of the sparsity and conservative nature of treatment Plaintiff received, “the
ALJ failed to consider the nature of Plaintiff’s illness.” Docket No. 20 at 10. Plaintiff notes that
“[b]ecause cerebral palsy is caused by injury to the brain, its effects are permanent, meaning
treatment is limited.” Id. at 10-11.
Defendant responds that Plaintiff’s argument (that treatment for cerebral palsy is limited)
“is undermined by the fact that he had cerebral palsy since age one, which the ALJ recognized,
and had been able to work for more than 10 years with the condition.” Docket No. 21 at 19.
Plaintiff, in his reply, reiterates his assertions that “the ALJ failed to consider the nature
of Plaintiff’s condition” and that “because cerebral palsy is an injury to the brain, treatment is
limited.” Docket No. 22 at 3.
As is discussed above, the ALJ has a duty to fully and fairly develop the record, such that
there can be meaningful judicial review. With regard to the ALJ’s consideration of Plaintiff’s
cerebral palsy, the ALJ has not done so. The ALJ noted only that “[t]he evidence indicates that
treatment has been quite limited.” TR 18. The ALJ’s decision does not acknowledge the nature of
cerebral palsy or mention that the treatment options for cerebral palsy itself are limited. As a
result, the undersigned cannot determine whether the ALJ properly considered the nature of
cerebral palsy and its limited treatment options when rendering his decision. The undersigned
27

therefore recommends that this action be remanded for further development of the record with
regard to the ALJ’s consideration of the nature of cerebral palsy and the limited treatment options
therefor.
e. ALJ’s Determination of Plaintiff’s Residual Functional Capacity (“RFC”)
Plaintiff contends that “the ALJ’s proffered RFC does not seem to be supported by the
medical evidence.” Docket No. 20 at 8. Plaintiff notes that “[t]he ALJ concluded Plaintiff was
capable of light work, purportedly relying on state doctor Larry McNeil M.D.,” and that “this
doctor however, did not consider Plaintiff’s subjective complaints.” Id. Plaintiff contends that he
“would have serious issues with his right hand and arm” and that “the CE [consultative
examination] completed by Dr. Hensley, which noted limited range of motion in Plaintiff’s
extremities,” corroborated his testimony. Id.
Plaintiff notes that “[t]he ALJ attempted to account for [the limitations contained in Dr.
Hensley’s CE] in his RFC by noting Plaintiff would primarily use the ‘right5 [sic] upper
extremity to lift and carry and the right upper extremity to assist and balance objects,” and argues
that the ALJ’s conclusion is not supported by the record because “according to Dr. Hensley,
Plaintiff was incapable of using his right extremity at all.” Id. Plaintiff submits that in light of
vocational expert Dr. Stephen Bernard Schnacke’s testimony that “an individual who can use
only one hand is likely not to be able to sustain any gainful employment,” Plaintiff should have
been found disabled. Id. at 8-9, citing TR 52.

5

In the ALJ’s decision, the ALJ stated that Plaintiff was limited to “. . . lifting and
carrying up to twenty pounds occasionally and ten pounds frequently primarily using the left
upper extremity to lift and carry and the right upper extremity to assist and balance objects . . . .”
TR 16 (emphasis added).
28

Plaintiff further submits that he “engaged in very limited daily activities,” and that
“[n]one of [his] activities, alone, or in combination, would support a finding that Plaintiff could
engage in full time work.” Id. at 10. As discussed above, Plaintiff also contends that “the ALJ
failed to consider the nature of Plaintiff’s illness. Because cerebral palsy is caused by injury to
the brain, its effects are permanent, meaning treatment is limited.” Id. at 10-11. Additionally, as
discussed above, Plaintiff argues the ALJ erroneously gave the letter Plaintiff’s father provided
limited weight and failed to consider that Plaintiff’s only past employment was “sympathetic
work” in concluding he could return to his previous work. Id. at 11-12.
Defendant responds that the ALJ’s decision should be affirmed “because substantial
evidence supports the ALJ’s RFC, and with that RFC, and considering Plaintiff’s vocational
factors, Plaintiff could make a successful adjustment to perform other work.” Docket No. 21 at
10. Defendant argues that the ALJ appropriately accorded little weight to Dr. Hensley’s opinion
because his opinion was inconsistent with other substantial evidence in the record. Id. at 11.
Defendant further argues that the ALJ appropriately relied on the opinion of Dr. McNeil, and that
Dr. McNeil did evaluate Plaintiff’s subjective complaints. Id. at 15-16. Defendant submits that
“[i]n forming the RFC, the ALJ also discussed nonmedical evidence and evaluated Plaintiff’s
subjective complaints.” Id. at 16.
Defendant argues that the ALJ correctly evaluated the inconsistency between Plaintiff’s
daily activities and his subjective complaints as one factor among others in the credibility
analysis. Id. at 18. Defendant contends that Plaintiff’s argument (that treatment for cerebral palsy
is limited) “is undermined by the fact that he had cerebral palsy since age one, which the ALJ
recognized, and had been able to work for more than 10 years with the condition.” Defendant
29

also argues that “the ALJ appropriately considered the testimony of Plaintiff’s father, found it to
be not entirely credible, and gave it limited weight.” Id. at 21. Additionally, Defendant argues
that “although Plaintiff contends that his ten years of employment came with significant
accommodations from his father, this is insufficient to support his request for remand” because
the ALJ properly determined Plaintiff could perform other work under the regulations. Id. at 21.
Plaintiff replies that “the ALJ provided no analysis or discussion regarding the medical
evidence that contradicted Plaintiff’s testimony, instead he provided a generic rendition of the
medical evidence.” Docket No. 22 at 2. Plaintiff argues that the ALJ’s reliance on Dr. McNeil’s
opinion is problematic because Dr. McNeil did not consider Plaintiff’s subjective complaints. Id.
at 4. Plaintiff contends that “despite the Commissioner’s attempt to ascribe value to Plaintiff’s
daily activities, Plaintiff’s limited activities do not undermine Plaintiff’s subjective complaints.”
Id. at 3. Plaintiff argues that “none of the activities cited in the Commissioner’s brief, including
attending church and grocery shopping two to three times a week for a couple hours, would
support the ALJ’s conclusion.” Id. at 3, citing Docket No. 21 at 18. Plaintiff further argues the
ALJ “failed to consider the nature of Plaintiff’s condition,” and that, “when viewed in context,
‘conservative treatment’ does not undermine Dr. Hensley’s restrictions.” Id.
“Residual Functional Capacity” is defined as the “maximum degree to which the
individual retains the capacity for sustained performance of the physical-mental requirements of
jobs.” 20 CFR § 404, Subpt. P, App. 2 § 200.00(c). With regard to the evaluation of physical
abilities in determining a claimant’s RFC, the Regulations state:
When we assess your physical abilities, we first assess the nature
and extent of your physical limitations and then determine your
residual functional capacity for work activity on a regular and
30

continuing basis. A limited ability to perform certain physical
demands of work activity, such as sitting, standing, walking,
lifting, carrying, pushing, pulling, or other physical functions
(including manipulative or postural functions, such as reaching,
handling, stooping or crouching), may reduce your ability to do
past work and other work.
20 CFR § 404.1545(b).
The ALJ in the case at bar ultimately determined that Plaintiff retained the RFC to
perform light work, stating:
The claimant’s diagnosed mild cerebral palsy with right sided
spasticity and history of interstitial lung disease merit limitations
within a light exertional range that was limited to: lifting and
carrying up to twenty pounds occasionally and ten pounds
frequently primarily using the left upper extremity to lift and carry
and the right upper extremity to assist and balance objects; sitting,
standing and walking up to six hours each in eight-hour workdays
with normal breaks; frequent pushing and pulling with the right
upper and lower extremities; occasional kneeling and crouching;
occasional overhead reaching with the right upper extremity;
occasional exposure to extremely cold temperatures and pulmonary
irritants such as dust, fumes, odors gases and poor ventilation.
TR 20.
The ALJ explained:
In sum, the claimant’s allegations regarding the nature and severity
of his impairment-related symptoms and functional limitations are
partially credible. While the medical and other evidence of record
supports some of the allegations regarding these symptoms, the
allegations regarding their severity, and the related functional
restrictions, are not supported. The undersigned has carefully read
and considered all the evidence of record and finds the residual
functional capacity set forth above is more consistent with the
appropriate medical findings and the overall evidence of record
than the allegations made by the claimant.
Id. (emphasis added).

31

In so finding and as discussed above, the ALJ considered the medical evidence of record,
including the opinion of Plaintiff’s treating physician (TR 18-19), Plaintiff’s subjective
complaints (TR 20), and Plaintiff’s reported daily activities (TR 19). While Plaintiff is correct
that a claimant’s sporadic daily activities may not indicate what a claimant can do on a sustained
basis, particularly where the claimant experiences periods of remission and exacerbation, the ALJ
should consider a claimant’s reported daily activities when rendering an RFC determination. See,
e.g., Cohen v. Sec’y of Dep’t of Health & Human Servs., 964 F.2d 524 (6th Cir. 1992). Here, the
ALJ considered Plaintiff’s daily activities, among other evidence, as one factor in the RFC
determination.
As discussed in the statements of error above, however, the ALJ failed to appropriately
consider the letter from Plaintiff’s father, and failed to appropriately consider the nature of, and
the limited treatment options for, cerebral palsy. For the reasons discussed above, the ALJ did
not meet his duty to develop the record on these issues. Accordingly, the undersigned cannot
determine the extent to which these issues may have affected the ALJ’s RFC determination.
As has been demonstrated, the ALJ failed to properly evaluate all of the medical and
testimonial evidence of record in determining that Plaintiff retained the RFC to perform light
work with additional limitations. TR 20. Because the ALJ did not properly evaluate the evidence
in reaching this RFC determination, the undersigned recommends that this action be remanded.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff’s “Motion
for Judgment Based On The Administrative Record” be GRANTED, and that the decision of the
Commissioner be REMANDED.
32

Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of service
of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111 (1986);
28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.

________________________________
JEFFREY S. FRENSLEY
United States Magistrate Judge

33