Aloyo v. Kijakazi

Filing 13

REPORT AND RECOMMENDATION: It is respectfully RECOMMENDED that Plaintiff's motion for judgment on the administrative record 8 be DENIED and the SSA's decision be AFFIRMED. Signed by Magistrate Judge Barbara D. Holmes on 3/26/2024. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT COLUMBIA
NICHOLAS ELLIOT ALOYO
v.
DR. KILOLO KIJAKAZI, Acting
Commission of the Social Security
Administration
To:

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)
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Case No. 1:23-cv-00051

The Honorable Eli J. Richardson, District Judge
REPORT AND RECOMMENDATION

Plaintiff Nicholas Elliot Aloyo filed this action pursuant to 42 U.S.C. § 405(g) to obtain
judicial review of the final decision of the Social Security Administration (“SSA”) denying him
disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). The case
is currently pending on Plaintiff’s motion for judgment on the administrative record (Docket No.
8), 1 to which Defendant SSA has responded (Docket No. 11). This matter has been referred to the
undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b) for initial consideration and a report
and recommendation. (Docket No. 12.)
Upon review of the administrative record as a whole and consideration of the parties’
filings, the undersigned Magistrate Judge respectfully recommends that Plaintiff’s motion (Docket
No. 8) be DENIED.

1

Plaintiff titles his motion as a “motion for judgment on the pleadings.” (Docket No. 8.)
However, the Court considers this motion as one for judgment based on the administrative record,
as set forth in Rule 5 of the Supplemental Rules for Social Security Actions Under 42 U.S.C. §
405(g).

I.

INTRODUCTION

On March 4, 2021, Plaintiff filed an application for DIB. (Transcript of the Administrative
Record (Docket No. 6) at 195–201). 2 He asserted that, as of the alleged onset date of September
30, 2009, 3 he was disabled and unable to work due to “cerebral palsy; scoliosis; glaucoma; asbury
hypertension; ADD; sleep apnea; Aspergers [sic].” (AR 95.) The claims were denied initially on
May 20, 2021 and upon reconsideration on January 24, 2022. (AR 11.) On July 13, 2022, Plaintiff
appeared with an attorney representative and testified at a video hearing conducted by ALJ Michael
E. Finnie. (AR 37–58.) On August 3, 2022, the ALJ denied the claim. (AR 11–18.) On June 22,
2023, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision, thereby
making the ALJ’s decision the final decision of the SSA. (AR 1–4.) Plaintiff then timely
commenced this civil action, over which the Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
II.

THE ALJ’S FINDINGS

The ALJ included the following enumerated findings in the August 3, 2022 unfavorable
decision:
1.

The claimant last met the insured status requirements of the Social Security Act on
September 30, 2009.

2.

The claimant did not engage in substantial gainful activity as of the amended
alleged onset date of September 30, 2009, which is the date last insured (20 CFR
404.1571 et seq.).

3.

Through the date last insured, the claimant had the following medically
determinable impairments: scoliosis post surgery, bursitis, cerebral palsy, and
glaucoma (20 CFR 404.1521 et seq.).

2

The Transcript of the Administrative Record is hereinafter referenced by the abbreviation
“AR” followed by the corresponding Bates-stamped number(s) in large black print in the bottom
right corner of each page.
3

Plaintiff originally alleged an onset date of April 29, 1986. However, upon advice of his
representative, he amended the alleged onset date to September 30, 2009. (AR 12.)
2

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that significantly limited the ability to perform basic
work-related activities for 12 consecutive months; therefore, the claimant did not
have a severe impairment or combination of impairments (20 CFR 404.1521 et
seq.).

5.

The claimant was not under a disability, as defined in the Social Security Act, at
any time from the alleged onset date, through September 30, 2009, the date last
insured (20 CFR 404.1520(c)).

(AR 14–17.)
III.

REVIEW OF THE RECORD

The parties and the ALJ, in combination, have thoroughly summarized and discussed the
medical and testimonial evidence of the administrative record. Accordingly, the Court will discuss
those matters only to the extent necessary to analyze the parties’ arguments.
IV.
A.

DISCUSSIONS AND CONCLUSIONS OF LAW

Standard of Review
The determination of disability under the Act is an administrative decision. The only

questions before this Court upon judicial review are: (1) whether the SSA’s decision is supported
by substantial evidence, and (2) whether the proper legal criteria were applied to the SSA’s
decision. Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)). The SSA’s decision must be affirmed if
it is supported by substantial evidence, “even if there is substantial evidence in the record that
would have supported an opposite conclusion.” Blakley, 581 F.3d at 406 (quoting Key v. Callahan,
109 F.3d 270, 273 (6th Cir. 1997)). Substantial evidence is defined as “more than a mere scintilla”
and “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.

3

2007); LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions
adopting language substantially like that in Richardson).
The SSA utilizes a five-step sequential evaluation process to determine whether a claimant
is disabled. 20 C.F.R. § 404.1520(a). If the issue of disability can be resolved at any point during
the evaluation, the ALJ does not proceed to the next step and the claim is not reviewed further. Id.
First, if the claimant is engaged in substantial gainful activity, he is not disabled. Id. Second, if the
claimant does not have a severe medically determinable impairment that meets the 12-month
durational requirements, he is not disabled. Id. Third, if the claimant suffers from a listed
impairment, or its equivalent, for the proper duration, he is presumed disabled. Id. Fourth, if the
claimant can perform relevant past work based on his residual functional capacity (“RFC”), which
is an assessment of “the most you [the claimant] can still do despite your limitations,” 20 C.F.R. §
404.1545(a)(1), he is not disabled. Id. Fifth, if the claimant can adjust to other work based on his
RFC, age, education, and work experience, he is not disabled. Id. The claimant bears the burden
of proof through the first four steps, while the burden shifts to the SSA at step five. Johnson v.
Comm’r of Soc. Sec., 652 F.3d 646, 651 (6th Cir. 2011) (citing Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 548 (6th Cir. 2004)).
The Court’s review of the SSA’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). A
reviewing court may not try a case de novo, resolve conflicts in evidence, or decide questions of
credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v. Richardson, 471
F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit findings and
determination unless the record is without substantial evidence to support the ALJ’s determination.
Houston v. Sec’y of Health & Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).

4

B.

The ALJ’s Five-Step Evaluation of Plaintiff
In the instant case, the ALJ resolved Plaintiff’s claim at step two of the five-step process.

The ALJ found that Plaintiff met the first step and had not engaged in substantial gainful activity
as of the amended alleged onset date. (AR 14.) However, at the second step, the ALJ determined
that Plaintiff’s impairments of “scoliosis post surgery, bursitis, cerebral palsy, and glaucoma” were
severe, but that Plaintiff did not have an impairment or combination of impairments that both
significantly limited his ability to perform basic work-related activities and met the twelve-month
durational requirement. (AR 14–17.) Accordingly, the ALJ did not proceed to step three to
determine the medical severity of Plaintiff’s impairments; to step four to determine Plaintiff’s
RFC; or to step five to determine if Plaintiff could adjust to other work based on his RFC. The ALJ
concluded that Plaintiff was not under a disability at any time from September 30, 2009, the alleged
onset date, through August 3, 2022, the date of the decision. (AR 17.)
C.

Plaintiff’s Assertions of Error
Plaintiff sets forth three assertions of error: (1) the ALJ failed to develop the record; (2) the

ALJ’s RFC determination was not supported by the evidence; and (3) the ALJ failed to conduct a
proper credibility determination. (Docket No. 9 at 10–21.) Accordingly, Plaintiff requests that this
case be remanded for further consideration under sentence four of 42 U.S.C. § 405(g), which
allows a district court to enter “a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.”
If the case contains an adequate record, “the [SSA’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.” HudsonKane v. Berryhill, 247 F. Supp. 3d 908, 914 (M.D. Tenn. 2017) (quoting Mowery v. Heckler, 771
F.2d 966, 973 (6th Cir. 1985)). However, benefits may be awarded immediately “only if all
5

essential factual issues have been resolved and the record adequately establishes a plaintiff’s
entitlement to benefits.” Holtman v. Saul, 441 F. Supp. 3d 586, 609 (M.D. Tenn. 2020) (quoting
Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994)). The Court now
turns to Plaintiff’s assertions of error.
1.

The ALJ’s Development of the Record

As an initial matter, the Court clarifies that the ALJ did not undertake an analysis of
Plaintiff’s disability under steps three, four, or five of the sequential evaluation process because
the ALJ determined at step two that Plaintiff did not have a severe medically determinable
impairment that met the 12-month durational requirement. (AR 14–17.) At step two, an impairment
is considered “severe” only if it “significantly limits [the claimant’s] physical or mental ability to
do basic work activities.” 20 C.F.R. § 404.1520(c). An impairment is not “severe” if it is only a
“slight abnormality which has such a minimal effect on the individual that it would not be expected
to interfere with the individual's ability to work, irrespective of age, education and work
experience.” Farris v. Sec’y of Health & Human Svcs., 773 F.2d 85, 90 (6th Cir. 1985) (quoting
Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984)).
Step two is considered “a de minimis hurdle that a claimant clears unless the impairment
is only a slight abnormality that minimally affects work ability.” McGlothin v. Comm'r of Soc. Sec.,
299 F. App’x 516, 522 (6th Cir. 2008) (internal citation and quotations omitted). Nevertheless, it
is the claimant’s burden to prove both that his impairment significantly limited his work-related
activities and that his impairment lasted for a continuous period of at least 12 months. Harley v.
Comm'r of Soc. Sec., 485 F. App’x 802, 803 (6th Cir. 2012).
Importantly, Plaintiff's date last insured is September 30, 2009 (AR 14), so Plaintiff can
only establish his entitlement to benefits if he proves that he became “disabled” prior to this date.

6

Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990) (citing 42 U.S.C. §§ 423(a), (c)). It is the
claimant’s burden to produce evidence demonstrating that his disability began before the date last
insured. Seeley v. Comm'r of Soc. Sec., 600 F. App’x 387, 390 (6th Cir. 2015).
For his first assertion of error, Plaintiff argues that the ALJ failed to develop the record
because there was insufficient medical evidence to determine whether Plaintiff was disabled.
Accordingly, Plaintiff contends that the ALJ should have obtained opinion evidence and,
specifically, should have ordered a consultative examination. To support his position, Plaintiff
relies primarily on two cases: (1) Timothy R.J. v. Comm’r of Soc. Sec., No. 3:22-cv-216, 2023 WL
2258524 (S.D. Ohio Feb. 28, 2023); and (2) Deskin v. Comm’r of Soc. Sec., 605 F.Supp.2d 908,
912 (N.D. Ohio 2008). As a threshold matter, both of these cases were decided by sister courts, so
their holdings are not binding on this Court, although they are persuasive. Nevertheless, for the
reasons explained below, the Court finds that neither case is applicable.
As an initial matter, both cases focus on a later step in the sequential analysis. They
examined whether substantial evidence supported the ALJ’s determinations at step four regarding
the claimants’ residual functional capacities. Timothy R.J., 2023 WL 225824 at *3 (“An ALJ is
required to base his RFC determination on a medical opinion.”); Deskin, 605 F.Supp.2d at 910–11
(“This case raises the question of when an ALJ should decide a case in the absence of a medical
opinion of a treating physician, consulting examiner, or medical expert as to the claimant's
functional capacity.”). Here, however, the question is whether substantial evidence supports the
ALJ’s determination at step two that Plaintiff did not have a severe medically determinable
impairment that met the 12-month durational requirement. Accordingly, the legal propositions
within these two cases are of minimal relevance.

7

Nevertheless, even if the analyses in Timothy R.J. and Deskin were applicable, the holdings
in these cases would not necessitate reversal of the ALJ’s finding that Plaintiff is not disabled.
First, in Timothy R.J., the court found that the ALJ erred when he failed to further develop the
record by obtaining updated opinion evidence. 2023 WL 2258524 at *2. The court stated that an
ALJ must obtain opinion evidence in at least two circumstances: (1) “when an ALJ is required to
make medical judgments about a claimant's functional abilities by interpreting raw medical data”;
and (2) when “a critical body of the objective medical evidence is not accounted for by a medical
opinion and there is significant evidence of potentially disabling conditions.” Id. at *3 (internal
quotations omitted) (citing Gonzalez v. Comm'r of Soc. Sec., No. 3:21-cv-000093-CEH, 2022 WL
824145, at *8 (N.D. Ohio Mar. 18, 2022); Mascaro v. Colvin, No. 1:16CV0436, 2016 WL 7383796,
at *11 (N.D. Ohio Dec. 1, 2016)). Ultimately, the court found that the second circumstance was
applicable and that “at least four years of medical evidence . . . was made part of the record but
never reviewed by a medical source. Consequently no medical source evaluated the bulk of the
records.” Id. Accordingly, the ALJ in Timothy R.J. failed to adequately develop the record to
support his conclusions regarding that claimant’s RFC.
In Deskin, the court examined when an ALJ can and cannot render its own judgment about
a claimant’s RFC. 605 F.Supp.2d at 911–12. Where “the medical evidence shows relatively little
physical impairment,” the ALJ may render “a commonsense judgment” about the claimant’s RFC,
even without a physician’s assessment. Id. at 912 (citing Manso–Pizarro v. Sec’y of Health &
Human Servs., 76 F.3d 15, 17 (1st Cir. 1996)). In other words, a “functional capacity assessment
from a medical source may not be necessary in every case.” Id. However, such an assessment is
necessary “[w]hen a claimant has sufficiently placed his or her functional inability at issue.” Id.
(citing Manso-Pizarro, 76 F.3d at 17). Therefore, as a “general rule,” an ALJ must do one of three

8

things when there is no opinion from a medical source about the claimant’s functional limitations:
“recontact the treating source, order a consultative examination, or have a medical expert testify
at the hearing.” Id.
However, as this Court has previously noted in other opinions, the Deskin case has been
criticized by other courts as being overly broad. See Johnson v. Saul, No. 1:18-0041, 2019 WL
3647058, at *4 (M.D. Tenn. July 19, 2019) (citing Henderson v. Comm'r of Soc. Sec., No. 1:08cv-2080, 2010 WL 750222, at *2 (N.D. Ohio Mar. 2, 2010)). This Court previously summarized
these criticisms as follows:
In fact, the author of the Deskin case clarified in a subsequent opinion that Deskin
“sets out a narrow rule that does not constitute a bright-line test” and “potentially
applies only when an ALJ makes a finding of work-related limitations based on no
medical source opinion or an outdated source opinion that does not include
consideration of a critical body of objective medical evidence.” Kizys v. Comm'r of
Soc. Sec., No. 3:10-cv-25, 2011 WL 5024866, at *2 (N.D. Ohio Oct. 21, 2011).
Moreover, it is well-established that while an ALJ has the discretion to facilitate a
consultative examination, she is not obligated to do so. See 20 C.F.R. § 404.1517
(“If your medical sources cannot or will not give us sufficient medical evidence
about your impairment for us to determine whether you are disabled or blind, we
may ask you to have one or more physical or mental examinations or tests.”)
(emphasis added). The ALJ retains the same discretion when deciding whether to
re-contact a treating physician. See Poe v. Comm'r of Soc. Sec., 342 F. App’x 149,
157 n.3 (6th Cir. 2009) (“[A]n ALJ is required to re-contact a treating physician
only when the information received is inadequate to reach a determination on
claimant's disability status[.]”).
Nevertheless . . . there is an abundance of case law from this circuit suggesting that
an ALJ must generally obtain a medical expert opinion before including functional
limitations in the RFC unless the ALJ can “render a commonsense judgment about
functional capacity” based on evidence that “shows relatively little” impairment.
Gross v. Comm'r of Soc. Sec., 247 F. Supp. 3d 824, 828 (E.D. Mich. 2017)
(collecting cases). Such guidance is consistent with the Sixth Circuit's admonition
that an ALJ “must not succumb to the temptation to play doctor and make [her] own
independent medical findings.” Simpson v. Comm'r of Soc. Sec., 344 F. App'x 181,
194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)).
Johnson, 2019 WL 3647058 at *4.

9

Here, Plaintiff has presented no compelling arguments under either Timothy R.J. or Deskin
to show that the ALJ’s decision at step two was not supported by substantial evidence. First and
foremost, as detailed above, these cases are inapplicable to this matter because the ALJ did not get
to step four to “make[] a finding of work-related limitations.” Id. In addition, there is no evidence
that the ALJ either (1) interpreted “raw medical data” to make medical judgments about Plaintiff’s
functional abilities or (2) failed to account for a “critical body of evidence” such that the ALJ was
required to obtain opinion evidence per Timothy R.J. Finally, Plaintiff has failed to convincingly
argue that the medical evidence in the record showed anything other than “relatively little physical
impairment” such that the ALJ was required to obtain a functional capacity assessment from a
medical source per Deskin and the subsequent cases that have clarified Deskin.
Regardless, the Court finds that the ALJ adequately developed Plaintiff’s record because
he examined and discussed Plaintiff’s physical and mental impairments, Plaintiff’s medical
treatment, the prior administrative medical findings, and Plaintiff’s education and work history.
When reviewing evidence in a case, “[a]lthough required to develop the record fully and fairly, an
ALJ is not required to discuss all the evidence submitted, and an ALJ’s failure to cite specific
evidence does not indicate that it was not considered.” Simons v. Barnhart, 114 F. App’x 727, 733
(6th Cir. 2004) (quoting Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)). Rather, the ALJ must
“articulate with specificity reasons for the findings and conclusions that he or she makes.” Reagan
v. Colvin, 47 F. Supp. 3d 648, 653 (E.D. Tenn. 2014) (quoting Bailey v. Comm’r of Soc. Sec., No.
90-3061, 1999 WL 96920, at *4 (6th Cir. Feb. 2, 1999.) Nevertheless, an ALJ “may not ignore an
entire line of evidence that is contrary to the ruling.” Craig v. Colvin, No. 3:12–cv–00333, 2014
WL 1287178, at *12 (M.D. Tenn. Mar. 28, 2014) (quoting McCombs v. Barnhart, 106 F. App’x
480, 484 (7th Cir. 2004) (citation omitted)).

10

Here, the ALJ provided an adequate and fulsome discussion of the record with respect to
Plaintiff’s physical and mental impairments, as well as Plaintiff’s treatment. For example, the ALJ
discussed an x-ray from May 1998 that showed two Harrington rods and hooks, as well as mild
residual mid-thoracic scoliosis but no evidence of spondylolisthesis. (AR 16 (citing AR 441).) He
also discussed an examination from December 1999 wherein Plaintiff’s provider noted Plaintiff’s
complaints of back and right hip pain; observed no obvious limp, no abductor weakness, and full
range of motion; and provided exercises to alleviate Plaintiff’s symptoms. (Id. (citing AR 440).) A
review of the medical records in the administrative record show various x rays and examinations
related to Plaintiff’s back, but these records date from February 1992 to December 1999. (AR 439–
53.) There are no medical records in the administrative record after December 1999 (AR 439–40)
and before May 2011 (AR 503). 4 In other words, no medical records exist for the years 2000 to
2010. Accordingly, there are few medical records contained within the administrative record that
speak to whether Plaintiff became disabled prior to his date last insured of September 30, 2009.
The ALJ found that medical records dated after the date last insured of September 30, 2009
show worsening or new impairments, including sleep apnea, hypertension, obesity, and glaucoma,
but these conditions are immaterial to the period at issue. (AR 17.) The ALJ did not, therefore,
take these conditions into account when determining Plaintiff’s disability at step two.
The ALJ also considered the State agency consultants’ determinations, but these provided
“insufficient evidence” to evaluate Plaintiff’s functional criteria prior to the date last insured of
September 30, 2009. (AR 17.) In a May 20, 2021 medical evaluation, Dr. Richard Surrusco and
4

From a review of the administrative record, the Court understands that Plaintiff was
incarcerated from 2006 to 2011 and again from 2014 to 2021. (AR 14, 17, 651.) Neither party
directly addresses the effect that Plaintiff’s incarceration may have had on his disability status,
though the SSA does assert that, following his incarceration, Plaintiff was “laid off” from
employment for a reason other than his impairments. (Docket No. 11 at 13.)
11

Dr. Richard J. Milan, Jr. found that there was insufficient evidence to fully assess Plaintiff’s
physical or mental impairments. (AR 98–100.) In a January 20, 2022 medical evaluation, Dr. OK
Yung Chung and Dr. Jeffrey Binder found the same as their counterparts the prior year. (AR 106–
108.) Accordingly, the ALJ found that these determinations were neither valuable nor persuasive
to determine Plaintiff’s disability at step two. (AR 17.)
Finally, the ALJ provided an adequate discussion of Plaintiff’s education and work history.
With respect to Plaintiff’s education, the ALJ reviewed the education records that Plaintiff
submitted and considered his testimony, which the ALJ summarized as follows:
The claimant testified that he was in special education from kindergarten and
throughout high school. During a 2022 mental evaluation, the claimant reported he
received a special education diploma. (Exhibit 12F, p3) The evidence from
Williamson County Schools shows the claimant did receive some special education
predominantly for math. (Exhibit 1F) However, the evidence from Franklin High
School shows the claimant graduated with a regular high school diploma (Technical
Path) on May 29, 1998. He was ranked number 137 of 305 students and had a grade
point average (GPA) of 2.95. (Ex 1E, p4)
(AR 16.) As for Plaintiff’s work experience, the ALJ reviewed a work history report showing that
Plaintiff worked at McDonald’s as a station manager from August 1, 2003 until September 30,
2005 for forty hours per week and earned $1,179.00 per month through September 2005 (AR 17);
testimony from Plaintiff’s mother that he “could not work at McDonalds now due to worsening
gout, sleep apnea, hypertension, and glaucoma since 2009” (AR 16); and a mental evaluation
report suggesting that Plaintiff did not work “prior to a conviction,” while convicted and in prison,
or “subsequent to [a] period of incarceration” (AR 17).
In sum, Plaintiff fails to meet his burden to (1) prove both that his impairment significantly
limited his work-related activities and that his impairment lasted for a continuous period of at least
12 months, Harley, 485 F. App’x at 803, and (2) demonstrate that the ALJ’s step two finding lacks
the support of substantial evidence, see Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir.
12

2012) (citing Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). For these reasons, the Court
rejects Plaintiff’s first assertion of error.
2.

The ALJ’s Determination of Plaintiff’s RFC

In his second assertion of error, Plaintiff argues that the ALJ’s determination of his RFC
was not supported by the evidence in the record. Plaintiff contends that the ALJ improperly omitted
mental and postural limitations from his RFC and failed to undertake a function-by-function
assessment of his ability to perform work activities.
However, as detailed above, the ALJ was not required to determine Plaintiff’s RFC at step
four of the sequential evaluation process because the ALJ determined at step two that Plaintiff did
not have a severe medically determinable impairment that met the 12-month durational
requirement. (AR 14–17.) If the issue of disability can be resolved at any point during the
evaluation, the ALJ does not proceed to the next step and the claim is not reviewed further. 20
C.F.R. § 404.1520(a)(4) (“If we can find that you are disabled or not disabled at a step, we make
our determination or decision and we do not go on to the next step.”). Accordingly, because the
ALJ was under no obligation to go to any steps beyond step two, Plaintiff’s arguments that the
ALJ incorrectly determined Plaintiff’s RFC have no merit. For these reasons, the Court rejects
Plaintiff’s second assertion of error.
3.

The ALJ’s Credibility Determination

For his third and final assertion of error, Plaintiff argues that the ALJ failed to conduct a
“proper credibility determination.” (Docket No. 9 at 19–21.) In particular, Plaintiff alleges that the
ALJ failed to “find that the intensity, persistence, and limiting effects of his symptoms precluded
him from engaging in substantial gainful activity on a full-time and sustained basis.” (Id. at 19.)

13

To support this position, Plaintiff points to Social Security Ruling (“SSR”) 16-3p and claims that
the ALJ failed to abide by the two-step process set forth in this ruling.
“An individual’s statements as to pain or other symptoms will not alone establish that [he
is] disabled.” Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (internal citation
omitted). Rather, when an individual alleges impairment-related symptoms, the ALJ must evaluate
those symptoms using a two-step process. 5 SSR 16-3p, 2017 WL 5180304, at *2. First, the ALJ
considers whether there is an underlying medically determinable impairment that could reasonably
be expected to produce an individual’s symptoms. Id. at *3. Second, if an impairment is
established, the ALJ must then determine the intensity and persistence of the symptoms and the
extent to which the symptoms limit an individual’s ability to perform work-related activities. Id.
In considering the intensity, persistence, and limiting effects of symptoms, the ALJ must
examine the “entire case record,” which includes objective medical evidence, the individual’s own
statements, information from medical sources, and “any other relevant evidence” in the record. Id.
at *4. The ALJ must also consider the following factors: (1) daily activities; (2) the location,
duration, frequency, and intensity of the alleged pain or other symptoms; (3) any precipitating or
aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication; (5) the
claimant’s non-medication treatment; (6) any measures other than treatment the claimant employs
to relieve pain or other symptoms; and (7) “other evidence.” Id. at *7–8.
The consistency of an individual’s statement about the intensity, persistence, and limiting
effects of symptoms is also important. If an individual’s statements are consistent with the
objective medical evidence, it is more likely that those symptoms have reduced the capacity to

5

A “symptom” is defined as an individual’s own description or statement of her
impairment. SSR 16-3p, 2017 WL 5180304, at *2.
14

perform work-related activities. Id. at *8. On the other hand, if those statements are inconsistent,
it is less likely that those symptoms have reduced the capacity to perform work-related activities.
Id. Consistency is determined by reviewing an individual’s statements when seeking disability
benefits, statements at other times, and attempts to seek and follow medical treatment. Id. at *8–
9. An analysis of treatment history may include a consideration of an individual’s ability to afford
treatment, access to low-cost medical services, and/or relief from over-the-counter medications,
among other information. Id. at *9.
The ALJ’s determination must contain specific reasons for the weight given to the
individual’s symptoms that are clearly articulated so that the individual and the subsequent
reviewer can assess how the ALJ evaluated the individual’s symptoms. Id. at *10. However, the
Sixth Circuit has held that an ALJ’s credibility determination is “essentially unchallengeable” and
must be affirmed so long as the findings are “reasonable and supported by substantial evidence.”
Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 476 (6th Cir. 2016). See also Calvin v.
Comm’r of Soc. Sec., 437 F. App’x 370, 371 (6th Cir. 2011) (courts must accord “great weight and
deference” to an ALJ’s determination regarding the consistency of a claimant’s allegations);
Daniels v. Comm’r of Soc. Sec., 152 F. App’x 485, 488 (6th Cir. 2005) (claimants seeking to
overturn the ALJ’s decision still “face an uphill battle”).
The Court finds that substantial evidence supports the ALJ’s credibility determination in
this matter. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (“[A]n ALJ’s
assessment of a claimant’s credibility must be supported by substantial evidence.”) (citation
omitted). In the decision, the ALJ first determined that Plaintiff’s medically determinable
impairments could be expected to produce some, but not all, of Plaintiff’s alleged symptoms. The
ALJ then found that Plaintiff’s allegations concerning his impairments and his ability to work were

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not “sufficiently supported by the record as a whole.” (AR 16.) To support this finding, the ALJ
referred to “the medical findings, the medical history and degree of medical treatment required,
and the claimant’s description of his activities of daily living.” (Id.) In particular, the ALJ
considered Plaintiff’s testimony regarding his glaucoma, back disorder, and difficulty with math;
his testimony regarding his daily activities, including cooking and taking out the trash; his mother’s
testimony regarding his daily activities; medical records regarding his pain; and the recommended
treatment for that pain. (AR 15–17.)
As detailed above, the ALJ examined Plaintiff’s medical records and treatment history prior
to his date last insured of September 30, 2009, but very few records from this time period were in
the record. The most recent pre-2009 records are from Plaintiff’s December 9, 1999 visit to a
pediatric orthopedic clinic for evaluation of right hip pain following Plaintiff’s “posterior spinal
fusion for idiopathic scoliosis.” (AR 440.) In one record, Dr. Richard Heller reviewed imaging,
observed two Harrington rods, hooks, and “minimal residual scoliosis,” and noted that there was
no spondylolisthesis. (AR 439.) In another record, Dr. Gregory Mencio noted that an examination
of Plaintiff indicated that Plaintiff’s recent hip pain was due to a trochanteric bursitis that may have
been caused and exacerbated by prolonged standing during Plaintiff’s job at a movie theater. (AR
440.) Dr. Mencio recommended a treatment program to alleviate the hip pain, but noted that
Plaintiff seemed to be doing well otherwise. (Id.). It appears that the next set of medical records
come after Plaintiff’s date last insured. They are dated May 2011 when Plaintiff was no longer
incarcerated and visited the Tennessee Department of Health. (AR 502–03.)
In sum, the ALJ relied on specific evidence to support his conclusion that Plaintiff’s
subjective complaints were not entirely consistent with the record, including Plaintiff’s testimony,
prior work history, medical records, and daily activities. Given such support, as well as the dearth

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of record evidence prior to Plaintiff’s date last insured and the significant deference that must be
afforded the ALJ’s credibility determination, see Hernandez, 644 F. App’x at 476, the Court finds
no reversible error in the ALJ’s finding. Accordingly, the Court rejects Plaintiff’s third assertion of
error.
V.

RECOMMENDATION

For the above stated reasons, it is respectfully RECOMMENDED that Plaintiff’s motion
for judgment on the administrative record (Docket No. 8) be DENIED and the SSA’s decision be
AFFIRMED.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
See Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(a). Failure to file specific written objections within
the specified time can be deemed to be a waiver of the right to appeal the District Court’s order.
See Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Milton, 380 F.3d 909, 912 (6th Cir. 2004) (en
banc). Any responses to objections to this Report and Recommendation must be filed within
fourteen (14) days of the filing of the objections. See Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(b).
Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge

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