Lackey v. Social Security Administration

Filing 32

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that the plaintiff's motion (DE 15) be DENIED, and the Commissioner's decision be AFFIRMED. Signed by Magistrate Judge Joe Brown on 4/1/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
CLAUDEAN LACKEY,

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PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
DEFENDANT.

No. 2:12-00101
Judge Nixon/Brown

To: The Honorable Judge John T. Nixon, Senior United States District Judge
REPORT AND RECOMMENDATION
For the reasons explained herein, the Magistrate Judge RECOMMENDS that the
plaintiff’s motion for judgment on the administrative record (the record) be DENIED, and the
Commissioner’s decision be AFFIRMED.
I.

Procedural History

The plaintiff protectively filed for Disability Insurance Benefits (DIB) under Title II of
the Social Security Act (the Act) and Supplemental Security Income (SSI) under Title XVI of the
Act on March 01, 2007 (Docket Entry (DE) 13, p. 159). 1 She claimed an onset date of January
15, 2007 (DE 13, p. 159) 2 and disability due to: migraines, neck pain, leg pain, high blood

1 Page numbers herein refer to the Bates Stamp.
2 The court takes notice of discrepant dates within the record regarding the onset date. The plaintiff claimed an onset
date of January 15, 2007 at the time of the initial filing on March 01, 2007 (DE 13, p. 159). A claimed onset date of
January 15, 2007 also appears in the record at pages 159, 220, 318, and 326. The plaintiff claimed an onset date of
November 01, 2006 at the time of subsequent filing on April 20, 2007 (DE 13, pp. 144-45). A claimed onset date of
November 01, 2006 also appears in the record at pages 9, 12, 16, 27, 30, 36, 58, 113, 127, 133, 137, 142, 145, 149,
243, 265, 267, 270, 277, 426, and 598. The plaintiff also claims an onset date of November 01, 2006 in her motion
(DE 16, p. 4). Finally, the plaintiff claimed an onset date of August 1, 2009 at the time of the third filing on October
06, 2009, filed during the pendency of the initial Appeals Council review request (DE 13, pp. 140-41). The Court
construes the onset date to be November 01, 2006 as claimed in the plaintiff’s motion.

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pressure, and depression (DE 13; p. 318). On March 09, 2007, the Commissioner denied the DIB
claim because the plaintiff lacked sufficient work credits to qualify for benefits (DE 13, pp. 15658). The plaintiff then filed for widow’s DIB on April 20, 2007 (DE 13, pp. 144-46). She
claimed an onset date of November 01, 2006 (DE 13, p. 145).
On July 06, 2007, the Commissioner denied the DIB and SSI claims (DE 13, pp. 130-31).
On October 09, 2007, the plaintiff untimely filed for reconsideration (DE 13, pp. 128-29),
explaining the untimeliness with the statement “I am depressed over my husband’s death and I
haven’t been able to do anything.” (DE 13, p. 129). On April 17, 2008, the Commissioner again
denied the claims (DE 13, pp. 123-27).
On May 16, 2008, the plaintiff timely requested a hearing before an Administrative Law
Judge (ALJ) (DE 13, p. 119). On March 25, 2009, the plaintiff appeared before ALJ, Jack B.
Williams, by a video hearing (DE 13, pp. 596-644). Also appearing was: (1) Julian Nadolsky, the
vocational expert (VE) (DE 13, p. 596); and (2) Carl Groves, Jr. (Mr. Groves) a non-attorney
representative for the plaintiff (DE 13, pp. 92; 119). On August 05, 2009, the ALJ decided that
the plaintiff was not disabled under Title II or Title XVI of the Act (DE 13, pp. 36-37).
On August 12, 2009, the plaintiff timely requested that an Appeals Council (AC) review
the decision (DE 13, p. 233). On October 06, 2009, the plaintiff filed a second benefits claim,
with an onset date of August 1, 2009 and disability due to: migraines, neck pain, leg pain, high
blood pressure, and back pain (DE 13, pp. 140-41; 220). On April 20, 2010, an AC granted the
request, vacated the hearing decision, and remanded the case to the ALJ (DE 10, pp. 17-19).
On March 22, 2011, the plaintiff appeared again before ALJ, Jack B. Williams, by video
(DE 13, pp. 572-95). Also appearing was: (1) Julian Nadolsky, the VE; and (2) Mr. Groves (DE

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13, p. 572). On April 08, 2011, the ALJ decided that the plaintiff was not disabled under Title II
or Title XVI of the Act (DE 13, p. 16).
On May 09, 2011, the plaintiff timely requested that an AC review the decision (DE 13,
p. 6). On August 31, 2012, an AC denied the request (DE 13, p. 2).
On October 29, 2012, the plaintiff timely brought the instant action (DE 1) and her
motion for leave to proceed in forma pauperis (DE 2) was granted (DE 5) on October 30, 2012.
On January 07, 2013, the defendant filed the answer and the record (DE 12-13). On February 08,
2013, the plaintiff filed the motion for judgment on the record (DE 15) and memorandum in
support of the motion (DE 16) pursuant to 42 U.S.C. §§ 405(g) and 1383(c), seeking judicial
review of the final decision of the Social Security Administration (the SSA), through its
Commissioner, as set out by the ALJ. On March 08 and April 09, 2013, the defendant filed
motions for an extension of time to file a response (DE 18; 20). On March 11 and April 09, 2013,
the motions were granted (DE 19; 21). On April 17, 2013, the defendant filed a response in
opposition (DE 22). On May 07, 2013, the plaintiff filed a reply (DE 23).
The matter is now properly before the Court.
II.

Review of the Record

A.

Relevant Medical Evidence

On August 19, 2005, the plaintiff presented to Cookeville Regional Medical Center
(Cookeville) Emergency Room (ER) with a headache, vomiting, arm tingling, and light
sensitivity (DE 13, p. 550). She was treated and discharged as improved (DE 13, p. 551). On
February 10, 2006, the plaintiff presented to Cookeville ER with a headache, nausea, and light
sensitivity (DE 13, p. 547). She was treated and discharged as stable (DE 13, p. 548).

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On April 24, 2006, the plaintiff presented to Dr. Kimberly Tabor (Dr. Tabor) at Upper
Cumberland Family Physicians to establish care (DE 13, p. 404). Dr. Tabor noted the plaintiff’s
report of hip pain, leg pain, and exacerbation of symptoms after working outside all day (DE 13,
p. 404). Dr. Tabor also noted the plaintiff had a history of, inter-alia, hypertension, depression,
headache, shortness of breath, chest pain, and fainting (DE 13, p. 404). On September 12, 2006,
the plaintiff presented to Dr. Tabor for treatment of fatigue, headache, high blood pressure, and
high cholesterol (DE 13, p. 403). Dr. Tabor reported that the plaintiff stated that she had not been
taking her medication, that she was having difficulty with her son’s military deployment, that her
anxiety and depression were worse, and that her headaches resolved when she took an extra dose
of medication (DE 13, p. 403). Dr. Tabor reported that the plaintiff had not presented for her
follow-up visits as scheduled (DE 13, p. 403).
On November 27, 2006, the plaintiff presented to Cookeville ER with arm and leg
tingling. (DE 13, pp. 534-36). She was treated and discharged as improved (DE 13, p. 536). On
January 07, 2007, the plaintiff presented to Cookeville ER with a headache, vomiting,
lightheadedness, and light sensitivity (DE 13, p. 532). She was treated and discharged as
improved (DE 13, p. 533).
On January 18, 2007, the plaintiff presented to the Cumberland Back Pain Clinic
(Cumberland Clinic) with, inter-alia, arm, leg, and neck pain, and migraines. (DE 13, p. 564).
The provider noted that the plaintiff had decreased range of motion in her cervical spine, normal
range of motion in her lumbar spine, normal muscle strength and gait, and a normal psychiatric
presentation (DE 13, pp. 564-65). The provider assessed the plaintiff with, inter-alia, migraine
headaches, hypertension, neck pain, and low back pain (DE 13, p. 565).

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On January 23, 2007, a MRI of the lumbar spine revealed “no evidence of disc herniation
or spinal stenosis;” “degenerative disc disease…with disc space narrowing and disc desiccation;”
and “no evidence of disc bulge, protrusion, or herniation.” (DE 13, p. 567). A MRI of the
cervical spine revealed “mild encroachment on the neural foramina.” (DE 13, p. 568).
On January 31, 2007, the plaintiff presented to Cumberland Clinic with “no new
problems,” and on February 21, 2007, a provider at Cumberland Clinic refilled the plaintiff’s
prescriptions and assessed her with, inter-alia, hypertension and migraines, (DE 13, pp. 560-62).
On March 21, 2007, the plaintiff presented to Cookeville, where Dr. Lauretta Connelly
(Dr. Connelly) noted the plaintiff’s history of migraines, and hypertension (DE 13, p. 498).
On July 26, 2007, the plaintiff presented to Cookeville ER with chest pain and shortness
of breath (DE 13, p. 481). She reported having four similar episodes since June (DE 13, p. 481).
The plaintiff was treated and discharged as improved (DE 13, p. 482). On October 01, 2007, the
plaintiff presented to Cookeville ER with a 2 day headache, nausea and vomiting (DE 13, p.
480). The plaintiff was treated and discharged as improved (DE 13, p. 579). On February 29,
2008, the plaintiff presented to Cookeville ER with a migraine, pain from vomiting, and “passing
out.” (DE 13, p. 417). The plaintiff was treated and discharged as improved (DE 13, p. 419).
On November 05, 2010, the plaintiff presented to the Tennessee Department of Health
(DOH), where the provider noted a history of depression, high blood pressure, migraine
headaches, back pain, and neck pain (DE 13, p. 346). The provider assessed the plaintiff with
hypertension, migraine headache, and obesity (DE 13, p. 347). The plaintiff reported that she had
taken no medication in eighteen months (DE 13, p. 343). On November 08, 2010, the plaintiff
presented to the Tennessee DOH, where the provider noted that a computed tomography (CT)
scan of the plaintiff’s brain showed a “possible aneurysm.” (DE 13, P. 341).
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On February 02, 2011, the plaintiff presented to Livingston Regional Hospital
(Livingston) with a possible fainting episode, nausea, tingling lips and hand, and a 4 day long
migraine (DE 13, p. 330). The provider noted that the November 2010 CT revealed a cyst in the
plaintiff’s brain, but that another physician in Cookeville determined it was benign (DE 13, p.
330). A follow-up CT revealed the cyst with no changes. The plaintiff was diagnosed with a
fainting episode related to headache or low heart rate and a cardiac study revealed “no significant
arrhythmia…that would suggest a cause for [the plaintiff’s] [fainting].” (DE 13, pp. 331; 333).
On February 03, 2011, the plaintiff presented to the Tennessee DOH for medication
refills and reported that her migraine from the day before was “better.” (DE 13, pp. 339-40).
A medication record indicates that the plaintiff received prescriptions from Dr. Gunnell
and Dr. McCraney between January 2003 and March 24, 2009 for depression, high blood
pressure, leg pain, back pain, arthritis, migraines, and water retention (DE 13, p. 236).
B.

Other Medical and Psychiatric Assessments

On April 25, 2007, Jerrell Killian, MS (Mr. Killian) completed a psychological
evaluation of the plaintiff and diagnosed her with depressive disorder and bereavement (DE 13,
pp. 468-70). The plaintiff reported to Mr. Killian that she had depression which “comes and
goes” and that her migraines were “much improved since she was put on a medication which
stops them if she can catch them in time.” (DE 13, p. 469). Mr. Killian found that the plaintiff
did “suffer from depression to an extent which [was] somewhat more than an adjustment
disorder but less than major depression,” and found that there were “no psychiatric/psychological
symptoms which by themselves would be expected to impair adaptability to the point [the
plaintiff] could not maintain simple one and two step vocational activities.” (DE 13, p. 470).

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On May 09, 2007, Karen Lawrence, Ph.D. (Dr. Lawrence) completed a psychiatric
review of the plaintiff and similarly diagnosed her with depression and bereavement (DE 13, pp.
506-19; 509). Dr. Lawrence found “[t]here [was] no evidence that mental symptoms result[ed] in
more than non-severe limitations in function.” (DE 13, p. 518). The Social Security District
Office affirmed this report as written on March 26, 2008 (DE 13, p. 471).
On July 03, 2007, Dr. Mary Payne (Dr. Payne) completed a medical consultant analysis
(DE 13, pp. 502-05). She found that the plaintiff’s impairments were not severe, singly or
combined, and that the results of all exams were normal (DE 13, pp. 502; 505).
On March 18, 2008, Dr. Denise Bell (Dr. Bell) completed a medical consultant analysis
(DE 13, pp. 472-75). She found that “based on the objective evidence…the [plaintiff’s] physical
impairments seem[ed] to be non-severe singly or combined.” (DE 13, p. 475).
On November 20, 2009, the plaintiff presented to Jeffrey Scott Herman (Mr. Herman) for
a psychological evaluation on behalf of Tennessee Disability Determination Services (DDS) (DE
13, pp. 383-88). Mr. Herman found that the plaintiff had a Global Assessment of Functioning
(GAF) of 48 and summarized that:
The [plaintiff was] capable of understanding and remembering instructions of a simple or
detailed nature…The [plaintiff was] moderately limited in her ability to sustain
concentration. She was able to remain on task moderately well, but had difficulty
remembering things that were set previously when switching tasks. She was able to
sustain persistence…She [found] interacting with others subjectively uncomfortable, but
she [was] clearly capable of doing so…If a physiological explanation for her reported
weakness and pain [was] ruled out, a diagnosis of conversion disorder should be
assigned. It [was] very likely that the difficulty with concentration as well as the physical
symptoms would improve drastically if the depression were adequately treated.
(DE 13, pp. 387-88). On November 24, 2009, the plaintiff presented to Dr. Donita Keown (Dr.
Keown) for a medical examination on behalf of DDS (DE 13, pp. 373-82). The plaintiff reported
migraines, hypertension, and chronic low back pain. Upon physical examination, Dr. Keown
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found that the plaintiff was 65.5 inches tall and weighed 204 pounds (DE 13, p. 375). She found
that the plaintiff had an obese abdomen (DE 13, p. 375). She found that the plaintiff had
untreated hypertension, a history of noncompliance with hypertension treatment, headaches that
were most likely the result of untreated hypertension as opposed to migraines, neck and back
pain, no evidence of disc herniation or spinal stenosis, and no medical impairment of the right
knee or of the hip (DE 13, p. 376). Dr. Keown found that the plaintiff could lift or carry up to
100 pounds continuously, 3 meaning more than two thirds of the day, could sit for 2 hours, stand
for 1 hour, and walk for 1 hour, and could sit, stand, or walk for a total of 8 hours in a day (DE
13, pp. 377-78). She found that the plaintiff would not require the use of a cane (DE 13, p. 378).
On December 23, 2009, Dr. James Gregory (Dr. Gregory) completed a medical
consultant analysis (DE 13, pp. 369-72). He found that the plaintiff’s impairments were not
severe, either singly or combined (DE 13, p. 369). He found that the plaintiff’s statements were
“only partially credible as the severity alleged is inconsistent with the objective findings from the
evidence in the file.” (DE 13, p. 372). Dr. Gregory reported that the plaintiff’s pain was
considered but also reported that the plaintiff was “noted to exaggerate and to be not fully
cooperative.” (DE 13, p. 372). He reported that the plaintiff had no significant functional limits
as a result of medically determinable impairments (DE 13, p. 372). The Social Security District
Office affirmed this report as written on February 24, 2010 4 (DE 13, p. 349).
On February 09, 2010, George T. Davis Ph.D. (Dr. Davis) completed a psychiatric
assessment and mental RFC assessment of the plaintiff covering the period of August 01, 2009 to

3 See DE 13, p. 377. The Court notes the discrepancy between terms used to describe “two-thirds or more of an
eight hour day.” The term “continuously” is used within the record on SSA forms. The term “constantly” is used in
the Social Security Administration, Program Operations Manual System (POMS) § DI 25001.001 (Medical–
Vocational Quick Reference Guide), available at ihttps://secure.ssa.gov/apps10/poms.nsf/lnx/0425001001.
4 The Court notes that the date listed at DE 13, p. 349 is 15/23/09, which the Court construes as an error. The Court
presumes that 12/23/09 is correct since this corresponds to the date of the medical consultant analysis.

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February 09, 2010 (DE 13, pp. 351-54). He found that the plaintiff was capable of understanding
and remembering simple and multistep instructions, was capable of attending to simple and
multistep tasks, had limited concentration but could attend to said tasks for periods of at least 2
hours in an 8 hour day and complete a routine workweek, was capable of appropriate social
interaction, and was capable of adapting to change (DE 13, p. 353). He diagnosed that the
plaintiff had a GAF of 48, major depressive disorder, single episode, without conversion
disorder 5 (DE 13, pp. 358; 361; 367). 6 The Social Security District Office affirmed this report
as written on February 22, 2010 (DE 13, p. 350).
C.
1.

Testimonial Evidence

Plaintiff Testimony at Second Hearing

On March 22, 2011, Mr. Groves informed the ALJ that he had seen the record, that there
was nothing outstanding that should have been in the record, and that he was satisfied that the
record was complete (DE 13, pp. 575-76). The plaintiff then testified on direct examination by
Mr. Groves (DE 13, pp. 577-86). The plaintiff testified that she was fifty-three years old, that she
had not obtained a General Education Degree (GED), and that she had not received any
vocational training after high school (DE 13, p. 577). Mr. Groves asked the plaintiff to explain
what kept her from working (DE 13, p. 578). The plaintiff testified that she has severe pain in her
neck, that the pain causes severe migraines, and that she has severe pain and spasms in her lower
5 Dorland’s Illustrated Medical Dictionary 848 (Elsevier 2012) (1900) (Conversion Disorder: “a mental disorder
characterized by conversion symptoms (loss or alteration of voluntary motor or sensory function suggesting physical
illness…) having no demonstrable physiological basis….”).
6 The Court notes the following discrepancy in the report of Dr. Davis: On DE 13, p. 361, he notes that “[a]
medically determinable impairment [(MDI)] is present that does not precisely satisfy the diagnostic criteria above”
and lists “conversion disorder” as the MDI. However, the instructions immediately below this indicate that
“[p]ertinent symptoms, signs, and laboratory findings that substantiate the presence of this impairment” must be
listed in section IV. In section IV, on On DE 13, p. 367, however, Dr. Davis notes that the plaintiff’s diagnosis was
without conversion disorder. Therefore, the Court notes this discrepancy and, because there are no pertinent
symptoms, signs, or laboratory findings listed in section IV to substantiate the presence of conversion disorder, the
Court construes the record to indicate that Dr. Davis did not diagnose the plaintiff with conversion disorder.

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back (DE 13, p. 579). She testified that she has had these conditions for the past four or five
years (DE 13, p. 579).
The plaintiff testified that her neck problems cause tingling in her hands, make it difficult
for her to raise her arm, and cause pain in her shoulders (DE 13, p. 579). She testified that she
has tingling in her hands about twice a week, in conjunction with migraines, and that she drops
items “every other day.” (DE 13, p. 579). She testified that she could only lift or carry five or
ten pounds, and that the symptoms are worse in her right hand (DE 13, pp. 579-580). She
testified that she has difficulty looking from side to side because of her neck pain, but that she is
able to drive (DE 13, p. 580). She testified that the pain radiates into her arms (DE 13, p. 580).
The plaintiff testified that her back pain radiates down to her ankles, sometimes only in
her right leg (DE 13, pp. 580-81). She testified that she has trouble standing or walking because
of her back problems and explained, “I can walk to the mailbox. I have a long driveway. By the
time I get back to the house, I’m just out of breath.” (DE 13, p. 581). The plaintiff testified that
she is able to alternate sitting and standing during an 8 hour workday, she could stand or walk for
1 hour total over the course of the day and that she could sit for about 3 hours total over the
course of the day (DE 13, p. 581). The plaintiff testified that she spends most of the day “lying
down.” (DE 13, p. 582). She testified that her pain medication “puts [her] to sleep.” (DE 13, p.
582) She testified that, on a normal day, her pain level with the pain medication reaches a 6 on a
1 to 10 scale, with 10 indicating severe agony (DE 13, p. 282).
The plaintiff testified that she has had migraines since her onset date of November 2006
(DE 13, p. 582). Mr. Groves asked the plaintiff to describe her migraines and she testified:
I wake up in the night and my head is throbbing real bad, and I can get up in the morning
and have a real bad migraine and it’s just like the whole top of my head is coming off. A
lot of time it starts…in the back of my neck and it comes around, and sometimes I have
to sit and push in on my temples to help the pain.
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(DE 13, p. 583). The plaintiff testified that she has a migraine “sometimes twice a week” and
that, on average, they last for 8 to 12 hours but can last up to 2 days (DE 13, p. 583). She
testified that her migraine medication “puts [her] down to sleep” and interferes with her ability to
concentrate “all the time” (DE 13, pp. 583-84). Mr. Groves asked the plaintiff whether she could
do a job “where there were 2 pieces of a pen coming by on a conveyor belt and [her] job was
simply to pick them up, screw them together, put them back on the conveyor belt…for
increments of about 2 hours.” (DE 13, p. 584). The plaintiff testified that the pens would “be
flying past [her]” because she would “be thinking about something else and...just…can’t
concentrate.” (DE 13, p. 584).
The ALJ asked the plaintiff to explain her preference not to be around other people and
she testified that should would “rather be by [herself].” (DE 13, p. 585). She testifies that about
once a week, she will “just fly off the handle” when she gets mad, and that she gets mad if
someone criticizes her on a task (DE 13, p. 585). The plaintiff testified that in her previous
employment, she would either be fired because of her migraines and her inability to concentrate
or that she would quit because of her pain (DE 13, pp. 585-86).
The plaintiff next testified on direct examination by the ALJ (DE 13, pp. 586-90). The
plaintiff testified that she takes medication for migraines and that while the medication will
sometimes help, she will sometimes require treatment at the ER (DE 13, pp. 586-87). She
testified that she takes medication for high blood pressure, and that she always takes her
medication as prescribed (DE 13, p. 587). However, the ALJ asked about the evidence in the
record indicating that the plaintiff had not taken any medication in 18 months (DE 13, p. 587).
The plaintiff testified that she had no insurance and could not afford her medication (DE 13, p.
587). The ALJ asked about evidence in the record indicating that the plaintiff reported to a
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psychologist in April 2007 that her migraines were improved since being put on medication (DE
13, p. 587). The plaintiff testified that instead, the migraines were “a little bit worse.” (DE 13, p.
587). The plaintiff testified that she has not had any neck or back surgery, that she drives once a
week, and that she has no income (DE 13, p. 588).
2.

Vocational Expert Testimony at Second Hearing

The VE testified that the plaintiff’s past work as a stocker is medium, 7 unskilled 8 work
(DE 13, p. 590). The ALJ then presented the VE with a hypothetical scenario:
A person approaching 54 years of age, who has a limited education, and past relevant
work identical to that of the plaintiff. The person would be limited to light exertion. The
person would have decreased concentration which would not preclude simple work but
would preclude detailed work or complex work. The person could relate superficially
with others, and could adapt to routine work occasionally.
(DE 13, p. 590). The VE testified that, under this hypothetical, the plaintiff could not perform her
past relevant work as a stocker because “[p]ast relevant work requires too much lifting.” (DE 13,
p. 590). The VE testified, however, that there would be other light, unskilled jobs within the
limitations of the hypothetical that the plaintiff could perform (DE 13, p. 591). These jobs
include a folder, sorter, tagger, counter attendant, board girl in a cafeteria, wrapping machine
tender, cushion stuffer, gasket inspector, electrical accessory assembler, and bottling line
attendant (DE 13, p. 591). The VE testified that there were approximately 800 such positions
within 75 miles of Cookeville and 1,000,000 positions nationally (DE 13, p. 639).
In response to questioning by the ALJ, the VE testified that, if the plaintiff’s testimony
was correct, the plaintiff would not be able to work at all (DE 13, p. 592). The VE then testified
on direct examination by Mr. Groves (DE 13, pp. 592-94). Mr. Groves partially adopted the
7 20 C.F.R. §§ 404.967 and 416.1467 (“To determine the physical exertion requirements of work in the national
economy, [jobs are classified] as sedentary, light, medium, heavy, and very heavy.”) (emphasis added).
8 20 C.F.R. §§ 404.968 and 416.1468 (“In order to evaluate [the plaintiff’s] skills…occupations are classified as
unskilled, semi-skilled, and skilled.”) (emphasis added).

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hypothetical that the ALJ presented. Mr. Groves’ hypothetical added an individual who would be
limited to “occasional bilateral fine manipulation and frequent bilateral gross manipulation” with
the limitations worse in her right hand (DE 13, pp. 592-93). The VE testified that the limitation
of frequent bilateral gross manipulation would not change his prior testimony in response to the
ALJ’s hypothetical (DE 13, p. 593). The VE testified that the limitation of occasional bilateral
fine manipulation would reduce the number of jobs “by about 20 percent.” (DE 13, p. 593). 9
Mr. Groves’ second hypothetical partially adopted the hypothetical that the ALJ
presented and added an individual who would have frequent lapses in concentration and frequent
problems completing tasks. The VE testified that these limitations would prevent the plaintiff
from working at any occupation (DE 13, pp. 593-94).
III.
A.

Analysis
Standard of Review

The issue before the Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), is limited to
whether there is substantial evidence in the record to support the Commissioner’s findings of
fact. “Substantial evidence” is “more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Carrelli v. Comm'r of Soc. Sec., 390 F. App'x 429, 434 (6th Cir. 2010) (quoting
9 The Court notes that the VE further testified that the jobs he listed “[do not] require more than gross
manipulation.” (DE 13, p. 593). If the jobs do not require more than gross manipulation, it is inconsistent to indicate
that a fine manipulation limitation would reduce the number of jobs. Despite this inconsistency, if the number of
jobs was reduced by 20 percent, the number of local jobs would equal 640 instead of 800. Under 42 U.S.C. §
423(d)(2)(A), “[a]n individual shall be determined to be under a disability only if his…impairments are of such
severity that he is not only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national economy….mean[ing]
work which exists in significant numbers either in the region where such individual lives or in several regions of the
country.” (emphasis added). In determining what constitutes a significant number of jobs, courts use a case-by-case
determination. Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574, 579 (6th Cir. 2009) (citing Hall v. Bowen, 837 F.2d
272, 274-75 (6th Cir. 1988)). As the 6th Circuit held, as few as 500 jobs may constitute a significant number of jobs
for purposes of 42 U.S.C. § 423(d)(2)(A). Nejat, 359 F. App'x at 579. Here, the plaintiff has not argued that the
number of jobs fails to constitute a significant number, and the Court does not reach this conclusion sua sponte.

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Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.1994)). The Court “may not
try the case de novo, resolve conflicts in evidence, or decide questions of credibility.” Carrelli,
390 F. App'x at 434.

If there is “substantial evidence” in the record that supports the

Commissioner’s decision and the Commissioner applied the correct legal standard, then the
Court must affirm the Commissioner’s final decision, “even if the Court would decide the matter
differently, and even if substantial evidence also supports the [plaintiff’s] position.” Id. (citing
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986) (en banc)).
B.

Administrative Proceedings

Disability is defined for Title II DIB and Title XVI SSI claims as an inability to “engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months….” 42 U.S.C. §§ 423(d)(1)(A) and
1382(c)(a)(3)(A); 20 C.F.R. §§ 404.1505 and 416.905.
Under the Act, a widow or widower of an insured deceased spouse is entitled to widow’s
DIB benefits if they are at least fifty years of age, they are disabled, and their disability “started
not later than 7 years after the insured died or 7 years after [they] were last entitled to…widow's
or widower's benefits based upon a disability, whichever occurred last.” 42 U.S.C. § 402(e); 20
C.F.R. §§ 404.335(c).
The ALJ uses a 5 step sequential evaluation for both DIB and SSI claims to determine
whether the plaintiff meets the definition of “disabled.” 20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and
416.920(a)(4)(i)-(v).
i.

If the plaintiff is engaged in substantial gainful activity, the Court will find that the
plaintiff is not disabled.

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ii.

If the plaintiff does not have a severe medically determinable physical or mental
impairment meeting the duration requirement or a combination of such impairments,
the Court will find that the plaintiff is not disabled.

iii.

If the plaintiff does have an impairment(s) that meets or equals one of the listings of
impairments in 20 C.F.R. pt. 404, Subpt. P, App. 1 (Appendix 1) and meets the
duration requirement, the Court will find that the plaintiff is disabled.

iv.

The court considers the plaintiff’s RFC and past relevant work. If the plaintiff can
still perform their past relevant work, the Court will find that they are not disabled.

v.

The Court considers the plaintiff’s RFC, age, education, and experience to determine
if the plaintiff can perform work other than past relevant work. If the plaintiff can
make an adjustment, the Court will find that they are not disabled.
The plaintiff has the burden of proof for steps 1 to 4. Carrelli, 390 F. App'x at 435. The

burden shifts to the Commissioner at step 5, where the Commissioner must “identify a
significant number of jobs in the economy that accommodate the [plaintiff’s] RFC and
vocational profile.” Id. To meet the burden, the ALJ may use the medical-vocational guidelines
in 20 C.F.R. pt. 404, Subpt. P, App. 2 (Appendix 2). 20 C.F.R. §§ 404.1569 and 416.969.
Appendix 2 is referred to as “the grid,” and provides guidance to the ALJ in determining
whether the plaintiff is disabled or whether significant numbers of other jobs exist for the
plaintiff. Wright v. Massanari, 321 F.3d 611, 615 (6th Cir. 2003). “Where the findings of fact
made with respect to a particular individual's vocational factors and RFC coincide with all of the
criteria of a particular rule [in the grid], the rule directs a conclusion as to whether the individual
is or is not disabled.” Anderson v. Comm'r of Soc. Sec., 406 F. App'x 32, 35 (6th Cir. 2010)
(quoting Appendix 2 at § 200.00(a)). Otherwise, instead of using the grid alone, the ALJ must
consider all relevant facts. 20 C.F.R. §§ 404.1569 and 416.969.
C.

Administrative Reliance on Vocational Expert Testimony

If a plaintiff’s limitations “do not satisfy the exact requirements of the medical-vocational
guidelines, the ALJ [is] entitled to rely on the testimony of a VE in reaching his decision” as to
Page 15 of 34

whether the plaintiff is disabled or whether the plaintiff is not disabled and a significant number
of jobs exist that the plaintiff can perform. Range v. Soc. Sec. Admin., 95 F. App'x 755, 757 (6th
Cir. 2004). If an “issue in determining whether [a plaintiff] is disabled is whether [their] work
skills can be used in other work and the specific occupations in which they can be used…, [the
ALJ] may use the services of a VE….” 20 C.F.R. §§ 404.1566(e) and 416.966(e).
D.

Notice of Decision

On March 22, 2011, the ALJ denied the plaintiff’s claims and made the findings of fact
and conclusions of law enumerated below.
1. It was previously found that the claimant is the unmarried widow of the deceased
insured worker and has attained the age of 50. The claimant met the non-disability
requirements for disabled widow’s benefits set forth in section 202(e) of the Act.
2. The prescribed period ends on April 30, 2014.
3. The claimant has not engaged in substantial gainful activity since November 1, 2006,
the alleged onset date.
4. The claimant has the following severe impairments: cervical and lumbar degenerative
disc disease, hypertension, and headaches.
5. The claimant does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments in Appendix 1.
6. The claimant has the RFC to perform light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b) except lift/carry 10 pounds frequently and 20 pounds
occasionally; stand/walk/sit for 6 hours each in an 8-hour workday with normal
breaks. The claimant has decreased ability for concentration that would not preclude
simple work but would preclude detailed or complex work. She can relate
superficially with others and can adapt to routine work changes.
7. The claimant is unable to perform any past relevant work.
8. The claimant was born November 20, 1956 and was 49 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date. The claimant
subsequently changed age category to closely approaching advanced age.
9. The claimant has a limited education and is able to communicate in English.
Page 16 of 34

10. Transferability of job skills is not an issue in this case because the claimant’s past
relevant work is unskilled.
11. Considering the claimant’s age, education, work experience, and RFC, there are jobs
that exist in significant numbers in the national economy that the claimant can
perform.
12. The claimant has not been under a disability, as defined in the Act from November 1,
2006, through the date of this decision.
(DE 13, pp. 11-16). On March 22, 2011, the ALJ made the specific decisions below.
1. Based on the application for disabled widow’s benefits protectively filed on March
01, 2007, the claimant is not disabled under sections 202(e) and 223(d) of the Act.
2. Based on the application for SSI protectively filed on March 01, 2007, the claimant is
not disabled under section 1614(a)(3)(A) of the Act.
(DE 13, p. 16).
IV.
A.

Claims of Error

Whether the ALJ failed to consider the effects of Plaintiff’s obesity

The plaintiff argues: (1) that the ALJ erred by failing to consider the effect of the
plaintiff’s obesity at each step of the disability evaluation, as required by Social Security Ruling
(SSR) 02-1P (DE 16, p. 12); and (2) that, by failing to consider the effect of the plaintiff’s
obesity, the ALJ failed to comply with the remand order of the AC (DE 16, p. 14).
SSR 02-1P “provide[s] guidance on SSA policy concerning the evaluation of obesity in
disability claims….” 10 In any disability claim, the ALJ uses a 5 step disability evaluation, as
explained above. 11 Medical conditions are irrelevant at the first step because the first step
pertains to whether the plaintiff is engaged in substantial gainful activity. 12 At the second step,
“[a]s with any other medical condition, [the ALJ] will find that obesity is a ‘severe’ impairment
10 SSR 02-1P, 2000 WL 628049.
11 See supra Part III.B.
12 20 C.F.R. §§ 404.1520(b) and 416.920(b) (“If you are working and the work you are doing is substantial gainful
activity, we will find that you are not disabled regardless of your medical condition or your age, education, and work
experience.”).

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when, alone or in combination with another medically determinable physical or mental
impairment(s), it significantly limits an individual's physical or mental ability to do basic work
activities.” 13 The ALJ will “generally rely on the judgment of a physician who has examined the
[plaintiff] and reported his or her appearance and build, as well as weight and height” in order to
identify obesity as a medically determinable impairment. 14 At the third step, the ALJ considers
whether (1) obesity meets the requirements of a listing in Appendix 1 (the listings); and whether
(2) obesity is medically equivalent to a listing. 15
At the fourth and fifth steps, the ALJ considers obesity in assessing RFC and must
explain how they reached a conclusion “on whether obesity caused any physical or mental
limitations.”16 SSR 02-1P also explains part of SSR 96-8P, which specifically addresses the
RFC assessment. SSR 96-8P indicates that “age and body habitus are not factors in assessing
RFC” 17 and the direction, to not consider age and body habitus in the assessment of limitations,
also appears on the SSA Medical Source Statement of Ability to do Work Related Activities (DE
13, p. 377). SSR 02-1P explains that SSR 96-8P includes this language in order to distinguish
“between individuals who have a medically determinable impairment of obesity and individuals
who do not.” 18 As SSR 02-1P explains, SSR 96-8P goes on to include the statement that “[i]t is
incorrect to find that an individual has limitations beyond those caused by his or her medically
determinable impairment(s) and any related symptoms due to such factors as age and natural
body build, and the activities the individual was accustomed to doing in his or her previous

13 SSR 02-1P at *4.
14 SSR 02-1P at *3.
15 SSR 02-1P at *5.
16 SSR 02-1P at *6-7.
17 SSR 96-8P at *1.
18 SSR 02-1P at *7 (emphasis added).

Page 18 of 34

work.” 19 In other words, when the ALJ does “identify obesity as a medically determinable
impairment…[they] will consider any functional limitations resulting from the obesity in the
RFC assessment, in addition to any limitations resulting from any other physical or mental
impairments that [they] identif[ied].” 20 The language regarding age and body habitus does not,
therefore, preclude a provider from finding the impairment of obesity or the ALJ from
considering obesity in the RFC assessment.
The record shows that on November 24, 2009, Dr. Keown found that the plaintiff was
65.5 inches tall and weighed 204 pounds, with an “obese abdomen.” (DE 13, p. 375). On
November 05, 2010, the provider at the Tennessee DOH listed obesity as one of the plaintiff’s
problems (DE 13, p. 347). On February 03, 2011, the provider at the Tennessee DOH noted that
the plaintiff had a BMI of 34.7 and weighed 213 pounds (DE 13, p. 339).
The record shows that at the second step, the ALJ properly considered the plaintiff’s
impairments. The ALJ found the plaintiff had the severe impairments of cervical and lumbar
degenerative disc disease, hypertension, and headaches (DE 13, p. 16). The ALJ found that these
impairments, but not the plaintiff’s obesity, significantly limited the plaintiff’s ability to do basic
work activities. The ALJ noted that “[g]iven the minimum quantum of evidence necessary to
establish a severe impairment,” the impairments which he found to be severe “place[d]
restrictions on the [plaintiff’s] ability to engage in work activity.” (DE 13, p. 16). The ALJ went
on to explain that the plaintiff’s purported impairment of depression and problems with social
interaction, concentration, persistence, and pace caused no more than minimal or mild limitation.
(DE 13, p. 16). The record shows that the ALJ did not err by finding the aforementioned severe
impairments, and not listing obesity among them, because the record did not support listing
19 SSR 02-1P at *7 (emphasis added); SSR 96-8P 1996 WL 374184.
20 SSR 02-1P at *7.

Page 19 of 34

obesity as a severe impairment. The plaintiff’s obesity was not listed on the plaintiff’s initial
claim for disability on March 01, 2007 (DE 13, p. 159). The plaintiff’s obesity was not listed
when she applied for reconsideration on October 09, 2007, and stated that she had “no additional
evidence to submit.” (DE 13, p. 128) The plaintiff’s obesity was not listed on the plaintiff’s
second claim for disability on October 06, 2009 (DE 13, pp. 140-41). Finally, neither the plaintiff
nor Mr. Groves alleged that obesity limited the plaintiff's abilities at either the initial hearing or
the second hearing (DE 13, pp. 572-644). Therefore, the record shows that the ALJ considered
the plaintiff’s impairments, and obesity was not supported as a severe impairment.
The record shows that at the third step, the ALJ properly considered the plaintiff’s
impairments. The ALJ found that “[n]o treating or examining physician ha[d] suggested the
presence of any impairment or combination of impairments of listing level severity.” (DE 13, p.
16) (emphasis added). The ALJ “considered the listings pertinent to [the plaintiff’s] alleged
impairments and [did] not find any present criteria set forth…to warrant a finding that the
[plaintiff] meets or equals any listing.” (DE 13, p. 16). Not only did the plaintiff’s obesity fail to
meet or equal any of the listings, but all of the plaintiff’s impairments failed to do so. The record
shows that the plaintiff’s providers documented the plaintiff’s weight, but did not document any
symptoms, complaints, or details related to it. Therefore, the record shows that at the third step,
the ALJ properly considered the listing level severity of the plaintiff’s impairments.
The record shows that at the fourth and fifth steps, the ALJ considered the plaintiff’s
obesity to the proper extent when assessing RFC, as required under SSR 02-1P and SSR 96-8P.
The ALJ acknowledged the plaintiff’s weight, noting that Dr. Keown documented the plaintiff’s
weight at 204 pounds in November 2009 (DE 13, p. 14). The ALJ referenced Dr. Keown’s entire
report (DE 13, p.14). Within that report, Dr. Keown documented that the plaintiff had an obese
Page 20 of 34

abdomen (DE 13, p. 375). The ALJ acknowledged the providers at the Tennessee DOH
“assessed the plaintiff with obesity” in November 2010, when the provider listed obesity as one
of the plaintiff’s problems, and in February 2011, when the provider noted the plaintiff’s weight
and BMI of 34.7 (DE 13, p. 14 citing DE 13, pp. 339; 347). The ALJ, therefore acknowledged
the plaintiff’s obesity, which was described, at most, in the record during an objective abdominal
exam and as a part of the plaintiff’s medical problems. The ALJ appropriately relied on Dr.
Keown’s report, as well as the reports from the providers at the Tennessee DOH. The ALJ
included all indications of the plaintiff’s weight, BMI, and obesity from the record, although the
indications in the record were brief and the documentation of associated limitations was absent
(DE 13, p. 14). Therefore, the record shows that the ALJ considered the plaintiff’s obesity in
assessing RFC and could not conclude that obesity caused any physical or mental limitations
because nothing in the record suggested any such limitations.
The plaintiff also argues that, by failing to consider the effect of the plaintiff’s obesity,
the ALJ failed to comply with the remand order of the AC (DE 16. p. 14). The remand order
instructed the ALJ to, inter-alia, “give further consideration to the [plaintiff’s] maximum RFC
and provide appropriate rationale with specific references to evidence of record in support of the
assessed limitations,” in compliance with 20 §§ C.F.R. 404.1545 and 416.945; SSR 85-16; 96-8P
(DE 13, p. 19). The record provides substantial evidence that the ALJ did comply.
To the extent that the plaintiff’s argument rests on the threshold assertion that the ALJ
failed to consider the effect of the plaintiff’s obesity, the record shows that this assertion is
meritless, as explained in the preceding paragraphs. Also, the record shows that the ALJ did give
further consideration to the plaintiff’s maximum RFC, as evidenced by a comparison between
the RFC determinations at the initial and the second hearing (DE 13, pp. 32-35; 12-15). At the
Page 21 of 34

initial hearing, the ALJ found that the plaintiff had the RFC “to perform light work as defined in
20 §§ C.F.R. 404.1567(b) and 416.967(b) except the claimant is limited to simple work with one
to two step operations,” (DE 13, p. 32) whereas at the second hearing the ALJ elaborated and
found that the plaintiff had the RFC:
[T]o perform light work as defined in 20 §§ C.F.R. 404.1567(b) and 416.967(b) except
lift/carry 10 pounds frequently and 20 pounds occasionally; stand/walk/sit for 6 hours
each in an 8-hour workday with normal breaks. The [plaintiff] has decreased ability
for concentration that would not preclude simple work but would preclude detailed or
complex work. She can relate superficially with others and can adapt to routine work
changes.
(DE 13, p. 13) (emphasis added). Additionally, the record shows that the ALJ gave further
consideration to the plaintiff’s maximum RFC, as evidenced by the ALJ’s questioning of the VE.
At the initial trial, the ALJ presented a hypothetical to the VE, to which the VE testified that the
plaintiff could not perform past relevant work but could perform other light, unskilled jobs (DE
13, p. 639). The ALJ offered no follow-up questioning regarding the limitations that the plaintiff
alleged (DE 13, p. 639). In comparison, at the second hearing, the ALJ questioned the VE as to
whether his testimony would change if the plaintiff’s testimony regarding her limitations was
correct (DE 13, p. 592). In response, the VE testified that the plaintiff would not be able to work
at all if her testimony about her limitations was correct (DE 13, p. 592). Notably, again, the
plaintiff never testified that one of her limitations was her obesity (DE 13, pp. 572-644).
Therefore, the record provides substantial evidence that the ALJ did give further consideration to
the plaintiff’s maximum RFC in the second hearing, in accordance with the order of the AC.
Therefore, the record provides substantial evidence that the ALJ properly considered the
plaintiff’s obesity and properly followed the remand order of the AC.

Page 22 of 34

B.

Whether the ALJ failed to develop the record

The plaintiff argues: (1) that the ALJ erred by failing to meet a basic duty to develop the
record, specifically by failing to request an updated consultative examination; and (2) that the
ALJ failed to meet a special duty to develop the record, triggered by the fact that the plaintiff
was represented by a non-attorney.
Under 20 C.F.R. §§ 404.1512(d)(2) and 416.912(d)(2), the ALJ has the basic duty to
develop the plaintiff’s complete medical history, meaning that for a plaintiff who alleges an
onset date “less than 12 months before [they] filed…, [the ALJ] will develop [the] complete
medical history beginning with the month [the plaintiff] say[s] [their] disability began unless [the
ALJ has] reason to believe [the] disability began earlier.” 20 C.F.R. §§ 404.1512(d)(2) and
416.912(d)(2). Also, where applicable, the ALJ will develop the plaintiff’s “complete medical
history for the 12 month period prior to…the month ending the 7–year period [the plaintiff] may
have to establish [their] disability [when the plaintiff is] applying for widow's or widower's
benefits based on disability.” 20 C.F.R. §§ 404.1512(d)(2)(2) and 416.912(d)(2)(2). 21
The record shows that the plaintiff alleged an onset date of November 01, 2006 (DE 13,
p. 145), which is less than 12 months before she filed her initial filing on March 01, 2007 (DE
13, p. 159) and her subsequent filing on April 20, 2007 (DE 13, pp. 144-45). The record does not
show that the ALJ had reason to believe that the disability began earlier. Since the ALJ
considered the medical history beginning on August 19, 2005, this development of the plaintiff’s
medical history met the basic duty to develop the record (DE 13, p. 550). Since the plaintiff is
applying for widow’s benefits and the record shows that the ALJ developed the plaintiff’s
21 Here, the plaintiff’s husband died on April 15, 2007 (DE 13, p. 599). Therefore, the plaintiff would have needed
to establish that her disability began within 7 years of that date, April 30, 2014, in order to establish entitlement to
widow’s disability benefits (DE 13, p. 10).

Page 23 of 34

medical history through February 03, 2011, as far as possible given the second hearing date of
March 22, 2011, this development of the plaintiff’s medical history also met the basic duty to
develop the record (DE 13, p. 339).
An ALJ will order a consultative examination if “sources cannot or will not give [the
SSA] sufficient medical evidence…..” 20 §§ C.F.R 404.1517 and 416.1517. However, the
“decision to purchase a consultative examination will be made on an individual case basis,” and
an ALJ “is not obligated to refer a plaintiff for a consultative evaluation unless he deems there is
insufficient evidence in the record to make [a] RFC determination.” 20 §§ C.F.R 404.1519 and
416.1519; Dickie v. Astrue, 3:11-0585, 2012 WL 3285624 (M.D. Tenn. July 20, 2012) report and
recommendation adopted, 3:11-0585, 2012 WL 3283458 (M.D. Tenn. Aug. 9, 2012) (citing
Hayes v. Comm'r of Soc. Sec., 357 F. App'x 672, 675 (6th Cir. 2009) citing 20 C.F.R. §§
404.1517 and 416.917)). The Sixth Circuit has held that an ALJ has discretion “to determine
whether further evidence, such as additional testing, is necessary” and that this discretion is
subject to an abuse of discretion standard. Hayes, 357 Fed. Appx. at 675.
The record shows that on November 24, 2009, the plaintiff presented to Dr. Keown for a
consultative medical examination on behalf of DDS. This was after the initial hearing on March
25, 2009 and after the plaintiff requested an AC review on August 12, 2009, but before the AC
remanded the case to the ALJ on April 20, 2010 and 16 months before the second hearing on
March 22, 2011 (DE 13, pp. 373-82). The plaintiff does not argue that the ALJ abused his
discretion by failing to order an initial examination. What the plaintiff argues, instead, is that the
ALJ abused his discretion by failing to order a second consultative examination (DE 16, p. 18).
The record shows that this argument is without merit because the record shows that there
was sufficient evidence in the record for the ALJ to make a RFC determination at the second
Page 24 of 34

hearing, such that the ALJ did not abuse his discretion by relying on the November 24, 2009
consultative examination. After the initial hearing on March 25, 2009, the plaintiff not only
presented for the consultative examination, but also presented for additional medical visits that
the ALJ considered at the second hearing. On November 20, 2009, the plaintiff presented to Mr.
Herman for a psychological evaluation on behalf of DDS (DE 13, pp. 383-88). The ALJ
considered this evidence, noting that “Mr. Herman, SPE, consultatively performed a
psychological evaluation….” (DE 13, p. 14). On December 23, 2009, the plaintiff presented to
Dr. Gregory for a medical consultant analysis (DE 13, pp. 369-72). This was the only visit which
the ALJ did not specifically mention in his decision. On February 09, 2010, the plaintiff
presented to Dr. Davis for a psychiatric assessment and mental RFC assessment for the period of
August 01, 2009 to February 09, 2010 (DE 13, pp. 351-54). The ALJ considered this evidence,
noting that “the [plaintiff’s] mental capacity limitations are consistent with the medical source
statement of the State Agency psychologist who noted no more than mild mental limitations.”
(DE 13, p. 13). On November 05 and 08, 2010, and February 03, 2011 the plaintiff presented to
the Tennessee DOH for examination and treatment (DE 13, pp. 346; 339-40). The ALJ
considered this evidence, noting that “the [plaintiff] received treatment at the local Department
of Health during the period of November 2010 through February 2011.” (DE 13, p. 14). On
February 02, 2011, the plaintiff presented to Livingston (DE 13, p. 330). The ALJ considered
this evidence, noting that “the [plaintiff] was admitted to the local hospital in February 2011 with
complaints of migraine headache and fainting.” (DE 13, p. 14). Therefore, the record shows that
the ALJ had sufficient evidence on which to rely during the second hearing and did not abuse his
discretion by not ordering a second examination.

Page 25 of 34

Finally, the plaintiff argues that the ALJ failed to meet a special duty to develop the
record, triggered by the fact that the plaintiff was represented by a non-attorney. Whether an
attorney or a non-attorney represented a plaintiff at a hearing before an ALJ is not dispositive on
the issue of whether the ALJ was under a special duty to develop the record, or on the issue of
whether a remand is required. Instead, the Court will “examine each case on its own merits to
determine whether the ALJ failed to fully develop the record and therefore denied the claimant a
full and fair hearing.” Kidd v. Comm'r of Soc. Sec., 283 F. App'x 336, 344-45 (6th Cir. 2008)
(citing Duncan v. Sec'y of Health & Human Servs., 801 F.2d 847, 856 (6th Cir. 1986)). Indeed,
“federal regulations permit claimants to choose non-attorneys to represent them at the
administrative level.” Kidd, 283 F. App'x at 345 (citing 42 U.S.C. § 406(a); 20 C.F.R. §§
404.1705(b) and 416.1505(b)). Succinctly, Sixth Circuit precedent establishes that “when a
plaintiff (o[r] potentially a plaintiff's representative [that the plaintiff has chosen]) is unfamiliar
with hearing procedures, the ALJ must ‘scrupulously and conscientiously probe into, inquire of,
and explore for all the relevant facts’ in order to satisfy [their] heightened duty” to develop the
record that exists under these circumstances. Presley v. Colvin, 2:11-CV-00103, 2013 WL
5204816 (M.D. Tenn. Sept. 16, 2013) (citing Lashley v. Sec'y of Health & Human Servs., 708
F.2d 1048, 1052 (6th Cir.1983)). “However, if the ALJ or a non-attorney representative does
perform a proper inquiry such that the plaintiff is not prejudiced…there is no cause for remand.”
Presley at *5 (citing Kidd, 283 F. App'x at 345).”
The record shows that the plaintiff was represented by a non-attorney, Mr. Groves, at
both the initial hearing and the second hearing (DE 13, pp. 92, 119). The plaintiff argues that Mr.
Groves’ representation “trigger[ed] the ALJ’s ‘special duty to develop’ the record (DE 16, p. 18).
However, as explained, this argument disregards Sixth Circuit precedent which establishes that it
Page 26 of 34

is a representative’s unfamiliarity with administrative proceedings that triggers the ALJ’s special,
or heightened, duty. Failure of the ALJ to develop the record under this heightened duty and
prejudice to the plaintiff would then result in remand. However, the plaintiff made no allegation
of unfamiliarity, improper inquiry, insufficient development of the record, or prejudice because
of Mr. Groves’ representation after the initial hearing. In fact, as the Defendant argues, Mr.
Groves was able to advocate for the plaintiff so successfully that he obtained a remand from the
AC on her behalf (DE 13, pp. 233-34). The record shows that there was, therefore, no heightened
duty on the part of the ALJ to develop the record because Mr. Groves was not unfamiliar with
administrative proceedings. Nonetheless, the record shows that the ALJ met his duty to fully
develop the record, as explained in the preceding paragraphs.
Therefore, the record provides substantial evidence that the ALJ properly met the basic
duty to develop the record and did not fail to meet a special duty to develop the record.
C.

Whether the ALJ failed to consider the effect of Plaintiff’s headaches on her RFC
The plaintiff argues that the ALJ erred by failing to consider the functional limitations

caused by the plaintiff’s headaches and by failing to incorporate these limitations into the RFC
determination. (DE 16, p. 19)
The ALJ determines the plaintiff’s RFC based on all relevant evidence in the record,
including: (1) medical history; (2) medical reports; (3) consultative examination reports; (4)
medical source statements; (5) descriptions of symptom-based limitations; (6) plaintiff
statements; and (7) family or third party statements. 20 C.F.R. §§ 404.1545(a)(3) and
416.945(a)(3). The ALJ also considers all of the plaintiff’s medically determinable impairments,
both severe and non-severe. 20 C.F.R. §§ 404.1545(a)(2) and 416.945(a)(2).

Page 27 of 34

The record shows that the ALJ found that the plaintiff’s headaches were severe at step 2
of the disability evaluation (DE 13, p. 12). The record shows that the ALJ then considered all of
the relevant evidence in the record regarding the plaintiff’s limitations from her headaches and
incorporated these limitations into the RFC determination. The ALJ found that the plaintiff had
the RFC “to perform light work” and had a “decreased ability for concentration that would not
preclude simple work but would preclude detailed or complex work.” (DE 13, p. 12).
The record shows that the ALJ cited the plaintiff’s medical history and medical reports in
which the plaintiff reported headaches or migraines. This ALJ noted that the plaintiff “frequently
sought treatment at the local ER for complaints of headaches [and] [s]he reported that her
headaches were less severe when she took prescribed Maxalt….” (DE 13, p. 13). The ALJ noted
that the plaintiff “received treatment at the local Department of Health during the period of
November 2010 through February 2011 [when] [s]he was assessed with…migraine headaches.”
(DE 13, p. 14). The ALJ noted that the plaintiff reported “a migraine headache that had
improved” in February 2011 (DE 13, p. 14). The ALJ also noted that, separately, in February
2011, the plaintiff “was admitted to the local hospital…[and] discharged in stable condition with
[a] diagnos[is] of migraine headache.” (DE 13, p. 14). The ALJ went on to cite the consultative
examination report of Dr. Keown (DE 13, p. 14), in which Dr. Keown found that the plaintiff’s
headaches that were most likely the result of untreated hypertension as opposed to migraines (DE
13, p. 376). The ALJ went on to cite the psychiatric medical source statement by Dr. Davis “who
noted no more than mild mental limitations” (DE 13, p. 13) and whose report included no
documentation of the plaintiff reporting subjective functional limitations from her headaches
(DE 13, pp. 355-67). The ALJ went on to cite the plaintiff’s testimony and her descriptions of
her symptoms. The ALJ noted that the plaintiff testified she has “headaches twice weekly that
Page 28 of 34

average 8 to 12 hours…she must remain in bed…in order to alleviate the severe headache [and
that] [d]ue to severe pain, [she] is unable to work because she cannot concentrate, focus, or
interact with others.” (DE 13, p. 13).
Therefore, the record provides substantial evidence that the ALJ did not fail to address
the functional limitations of the plaintiff’s headaches when determining the plaintiff’s RFC.
D.

Whether the ALJ failed to support his credibility determination

The plaintiff argues that the ALJ failed to support his credibility determination with
substantial evidence. Specifically, the plaintiff argues that the ALJ: (1) failed to consider the
plaintiff’s daily activities; and (2) erred by using boilerplate language, devoid of record support.
When making a disability determination, an ALJ uses a 2 part test to evaluate the
plaintiff’s symptoms. First, the ALJ “consider[s] whether there is an underlying medically
determinable physical or mental impairment…that could reasonably be expected to produce the
individual's…symptoms.” SSR 96-7P, 1996 WL 374186. Next, “the [ALJ] evaluate[s] the
intensity, persistence, and limiting effects of the…symptoms to determine the extent to which the
symptoms limit the individual's ability to do basic work activities.” SSR 96-7P, 1996 WL
374186. A plaintiff’s symptoms will limit their ability to do basic work activities to the extent
that the symptoms can reasonably be accepted as consistent with objective medical evidence.
SSR 96-7P, 1996 WL 374186. However, when the objective evidence does not reflect the
severity of symptoms, the ALJ requires other evidence to determine the credibility of a plaintiff’s
statements about their symptoms. SSR 96-7P, 1996 WL 374186. In this case, the ALJ must also
consider 7 factors: (1) daily activities; (2) location, duration, frequency, and intensity; (3)
precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of
medication; (5) treatment; (6) measures to relieve pain or other symptoms; and (7) functional
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limitations and restrictions. 20 C.F.R. §§ 404.1529(c) and 416.929(c). When the record shows
that an “ALJ [has] considered the evidence in the record and provided specific reasons for [their]
credibility findings, [their] decision is entitled to great deference and is supported by substantial
evidence.” Anthony v. Astrue, 266 F. App'x 451, 460 (6th Cir. 2008) (emphasis added).
The record shows that the ALJ properly evaluated the plaintiff’s credibility and supported
his determination with substantial evidence. The ALJ noted the plaintiff’s testimony and her
asserted symptoms, namely “migraine headaches; back and neck pain…pain into her ankles and
legs…shortness of breath when walking even minimal distances...can stand for one hour…sit for
3…spends

most

of

her

day

in

bed…must

remain

in

bed…to

alleviate…severe

headache[s]…unable to work because she cannot concentrate, focus, or interact with others.”
(DE 13, p. 13). The record shows that the ALJ then followed the 2 step process for evaluating the
credibility of the plaintiff’s symptoms, pursuant to SSR 96-7P, at step 4 of his disability
determination, when the ALJ determines the plaintiff’s RFC.
The ALJ first found that “the [plaintiff’s] medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms.” (DE 13, p. 13). Next, the ALJ
evaluated the intensity, persistence, and limiting effects of the plaintiff’s symptoms based on
both objective medical evidence and the 7 factors under 20 C.F.R. §§ 404.1529(c) and
416.929(c). The plaintiff focuses her substantial evidence contention on the assertion that the
ALJ failed to appropriately consider the plaintiff’s daily activities, the first factor under C.F.R.
§§ 404.1529(c) and 416.929(c). The plaintiff argues that “the ALJ failed to consider that
[p]laintiff testified that she experiences shortness of breath when walking to the mailbox and
reported suffering from memory loss, which causes her to need to be reminded to take
medication and to pay the bills” (DE 16, p. 21). The plaintiff further argues that “it is unclear
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how [p]laintiff’s limited abilities to walk to the mailbox, attend to her personal care needs, and
watch television demonstrate her ability to work….” (DE 16, p. 21).
The record shows that the ALJ appropriately considered the plaintiff’s activities and did
so as part of his consideration of the plaintiff’s credibility, not as a demonstration of the
plaintiff’s ability to work. The ALJ documented the plaintiff’s testimony of her “shortness of
breath” and inability to concentrate (DE 13, p. 13). The ALJ documented the evaluation that Mr.
Herman conducted, in which Mr. Herman documented the plaintiff’s report of her daily activities
and in which Mr. Herman found that the plaintiff’s long and short term memory were intact (DE
13, pp. 383-88). Mr. Herman documented that the plaintiff self-reported needing reminders for
medication, but being able to manage finances (DE 13, p. 367). The ALJ documented the
psychiatric and mental RFC assessment that Dr. Davis conducted, in which he found that the
plaintiff was “capable of understanding and remembering simple and multistep instructions,” and
“had limited concentration but could attend to said tasks for periods of at least two hours in an
eight hour day and complete a routine workweek….” (DE 13, p. 13). The record also shows that
the plaintiff reported conflicting information about her memory on the SSA Function Report (DE
13, pp. 307-14). While she marked “memory” as being affected, she also reported that she is able
to pay bills, count change, handle a savings account, and use a checkbook or money order (DE
13, pp. 310; 312). She reported that her ability to handle money had not changed since her
illness, injury, or condition began (DE 13, p. 311). Therefore, the record shows that the ALJ had
sufficient evidence on which to rely for his credibility determination.
Finally, the plaintiff argues that the ALJ erred by using the following, purportedly
boilerplate, language:

“the claimant’s statements concerning the intensity, persistence and

limiting effects of these symptoms are not credible to the extent they are inconsistent with the
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above RFC assessment.” (DE 16, p. 21). The Sixth Circuit addressed a similar argument in
Norris v. Commissioner of Social Security, where the plaintiff “contend[ed] [that] the ALJ failed
to follow agency regulations by improperly relying on ‘boilerplate’ language….” Norris v.
Comm'r of Soc. Sec., 461 F. App'x 433, 440 (6th Cir. 2012). However, the Court in Norris found:
In making the RFC determination, the ALJ gave a detailed recitation of all the evidence
presented, ranging from the medical records…to the opinions of consultants retained by
[the plaintiff]. In addition, the ALJ explained that it relied on the same evidence forming
the basis of the adverse-credibility finding—namely, the nature of the treatments
prescribed, the results of various medical tests administered, and [the plaintiff’s] reported
ability to function in daily life—to determine…RFC. In so doing, the ALJ's RFC
determination was premised on more than mere boilerplate assertions and demonstrated
meaningful engagement with the facts presented in the record.
Norris, 461 F. App'x at 440-41 (emphasis added). Here, the record shows that the ALJ also gave
a detailed recitation of all the evidence presented and based his RFC determination on more than
boilerplate assertions. The ALJ considered the reports of Dr. Payne (DE 13, p. 12, citing 67F);
Dr. Keown (DE 13, p. 12, citing 187F); Dr. Davis (DE 13, p. 13, citing 204-214F); and Mr.
Herman (DE 13, p. 14, citing 181-186F). 22 The ALJ considered the medical evidence from
Cookeville and Cookeville ER, Cumberland Clinic, the Tennessee DOH, and Livingston (DE 13,
pp. 13-15). Therefore, the record shows that the ALJ based his credibility determination on the
evidence of record as opposed to pontificating mere boilerplate phrases.
Therefore, the record provides substantial evidence that the ALJ appropriately considered
the plaintiff’s daily activities and did not err by using purportedly boilerplate language.
E.

Whether the ALJ’s Step 5 determination is unsupported by substantial evidence
The plaintiff argues that the testimony of the VE could not provide substantial evidence

to support the ALJ’s step 5 finding because the testimony of the VE was based on an incomplete

22 The Court notes that the pages cited within the ALJ decision do not correspond to the Bates stamp, but
correspond to an alternative coding system used within the record.

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hypothetical. The plaintiff argues that the hypothetical was incomplete because the ALJ erred in
evaluating the plaintiff’s RFC and credibility. The plaintiff again argues that the ALJ failed to
consider the plaintiff’s obesity.
The Sixth Circuit has found that “[a] VE’s testimony concerning the availability of
suitable work may constitute substantial evidence where the testimony is elicited in response to a
hypothetical question that accurately sets forth the plaintiff's physical and mental impairments.”
Thomas v. Comm'r of Soc. Sec., 13-1666, 2014 WL 128175 (6th Cir. Jan. 15, 2014) (citing Smith
v. Halter, 307 F .3d 377, 378 (6th Cir.2001)). The record shows that the ALJ presented a
hypothetical question to the ALJ:
A person approaching 54 years of age, who has a limited education, and past relevant
work identical to that of the plaintiff. The person would be limited to light exertion. 23 The
person would have decreased concentration which would not preclude simple work but
would preclude detailed work or complex work. The person could relate superficially
with others, and could adapt to routine work occasionally.
(DE 13, p. 590). In response, the VE testified that, under this hypothetical, the plaintiff could not
perform her past relevant work, but that there would be other light, unskilled jobs that the
plaintiff could perform (DE 13, pp. 590-91). The record shows that the hypothetical was not, as
the plaintiff argues, incomplete based on any error by the ALJ in evaluating the plaintiff’s RFC
or credibility. Instead, the hypothetical accurately reflected the plaintiff’s physical and mental
impairments because, as discussed above, 24 the ALJ determined the plaintiff’s RFC based on all
relevant evidence in the record and, also as discussed above, 25 the ALJ supported his credibility
determination with substantial evidence. Further, the limitations that the ALJ determined at step
5 were consistent with the limitations presented to the VE in the hypothetical at the hearing (DE
23 20 C.F.R. §§ 404.1567 and 416.967 (The “light exertion” limitation means exertion that “involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”).
24 See Supra Part IV.C.
25 See Supra Part IV.D.

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13, pp. 12; 590). Therefore, the record provides substantial evidence that the testimony of the VE
could provide substantial evidence to support the ALJ’s step 5 finding.
The record provides substantial evidence that the ALJ properly considered the plaintiff’s
obesity, as required by SSR 02-1p, and as discussed at length above. 26
V.

Conclusion

The record provides substantial evidence to support the Commissioner’s findings of fact
and the Commissioner applied the correct legal standard.
VI.

Recommendation

For the reasons explained above, the Magistrate Judge RECOMMENDS that the
plaintiff’s motion (DE 15) be DENIED, and the Commissioner’s decision be AFFIRMED.
The parties have fourteen (14) days, after being served with a copy of this Report and
Recommendation (R&R) to serve and file written objections to the findings and recommendation
proposed herein. A party shall respond to the objecting party’s objections to this R&R within
fourteen (14) days after being served with a copy thereof. Failure to file specific objections
within fourteen (14) days of receipt of this R&R may constitute a waiver of further appeal.
Thomas v. Arn, 474 U.S. 140 reh’g denied, 474 U.S 1111 (1986); Cowherd v. Million, 380 F.3d
909, 912 (6th Cir. 2004).
ENTERED this 1st day of April, 2014.

s/Joe B. Brown_____________________
Joe B. Brown
U.S. Magistrate Judge

26 Supra Part IV.A.

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