Smith v. Social Security Administration

Filing 23

MEMORANDUM OPINION OF THE COURT. Signed by Magistrate Judge Barbara D. Holmes on 3/28/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

ANGIE L. SMITH
v.
NANCY A. BERRYHILL 1
Acting Commissioner of Social Security

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No. 2:13-0051

MEMORANDUM OPINION
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain
judicial review of the final decision of the Social Security Administration (“Commissioner”),
denying Plaintiff’s claim for a period of disability, Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”), as provided under Titles II and XVI of the Social
Security Act (“the Act”). The case is currently pending on Plaintiff’s motion for judgment on the
administrative record (Docket Entry No. 17), to which Defendant has responded (Docket Entry
No. 19). This action is before the undersigned for all further proceedings pursuant to the consent
of the parties and referral of the District Judge in accordance with 28 U.S.C. § 636(c) (Docket
Entry No. 22).
Upon review of the administrative record as a whole and consideration of the parties’
filings, Plaintiff’s motion is DENIED, and the decision of the Commissioner is AFFIRMED.

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn W. Colvin as the defendant in this suit.

I. INTRODUCTION
Plaintiff filed applications for a period of disability, DIB, and SSI on May 13, 2010. See
Transcript of the Administrative Record (Docket Entry No. 11) at 94-95. 2 She alleged a
disability onset date of June 17, 2005. AR 94- 95. Plaintiff asserted that she was unable to work
because of back problems, hip problems, a right wrist injury, and depression. AR 105. 3
Plaintiff’s applications were denied initially and upon reconsideration. AR 94-97.
Pursuant to her request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Frank Letchworth on September 1,
2011. AR 38. On September 30, 2011, the ALJ denied the claim. AR 19-21. On May 16, 2013,
the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (AR 1-4),
thereby making the ALJ’s decision the final decision of the Commissioner. This civil action was
thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).

II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on September 30, 2011. AR 19-21. Based upon
the record, the ALJ made the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2010.
2. The claimant has not engaged in substantial gainful activity since
November 26, 2008, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).

2

The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding page number(s) as numbered in large black print on the bottom right
corner of each page. All other filings are hereinafter referenced by the abbreviation “DE” followed by the
corresponding docket entry number and page number(s) where appropriate.
3
The Commissioner also found evidence of anxiety and decreased far visual acuity. AR 105.
2

3. The claimant has the following severe impairments: disorder of lower back
(discogenic and degenerative); positive test for Hepatitis C virus; depressive
disorder, not otherwise specified; and anxiety disorder, not otherwise
specified (20 CFR 404.1520(c) and 416.920(c)).
***
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
***
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a range of light
exertion. She can occasionally climb ramps or stairs, or balance, kneel,
crouch, or perform fine manipulation. She can further occasionally stoop. She
cannot climb ladders, ropes, or scaffolds. She can have only occasional and
casual interaction with the general public.
***
6. The claimant is capable of performing past relevant work as a security guard,
machine operator, or cashier. This work does not require the performance of
work-related activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565 and 416.965).
***
7. The claimant has not been under a disability, as defined in the Social Security
Act, from November 26, 2008, through the date of this decision (20 CFR
404.1520(f) and 416.920(f)).
AR 24-30.

III. REVIEW OF THE RECORD
The parties and the ALJ 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.

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IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court upon judicial review are: (i) whether the decision of the
Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made
legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). See Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining
substantial evidence standard in context of Social Security cases); Kyle v. Comm’r of Soc. Sec.,
609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’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 v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
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,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L.
Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v.
Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting
language substantially similar to that in Richardson).
The Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions
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of credibility. See, e.g., 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 as a whole is without substantial evidence to
support the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing an entitlement to benefits by proving
her “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by medically
acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 432(d)(3) and
1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), and 404.1513(d). “Substantial gainful activity”
not only includes previous work performed by the claimant, but also, considering the claimant’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which the
claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired
if she applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s
alleged disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that she is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
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Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that she suffers from a severe impairment that meets the 12month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has
satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless
of age, education or work experience, if the impairment at issue either appears on the regulatory
list of impairments that are sufficiently severe as to prevent any gainful employment or equals a
listed impairment. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R.
§§ 404.1520(d), 416.920(d). A claimant is not required to show the existence of a listed
impairment in order to be found disabled, but such showing results in an automatic finding of
disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122
(6th Cir. 1989).
If the claimant’s impairment does not render her presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to her past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1). In determining a claimant’s RFC,
for purposes of the analysis required at steps four and five, the ALJ is required to consider the
combined effect of all the claimant’s impairments, mental and physical, exertional and
nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen,
853 F.2d 483, 490 (6th Cir. 1988). At the fourth step, the claimant has the burden of proving an
inability to perform past relevant work or proving that a particular past job should not be
considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot

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satisfy the burden at the fourth step, disability benefits must be denied because the claimant is
not disabled. Combs, supra.
If a claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quoting Walters v. Comm’r of Soc. Sec., 402 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a claimant can perform. Longworth, 402
F.3d at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981),
cert. denied, 461 U.S. 957, 103 S. Ct. 2428, 77 L. Ed. 2d 1315 (1983) (upholding the validity of
the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden
under appropriate circumstances). Even if the claimant’s impairments prevent the claimant from
doing past relevant work, if other work exists in significant numbers in the national economy that
the claimant can perform, the claimant is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 652 (6th Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,
1028-29 (6th Cir. 1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir.
1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation
process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen,
880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the evaluative
process is appropriate in some circumstances).
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C. The ALJ’s Five-Step Evaluation of Plaintiff
In the instant case, the ALJ resolved Plaintiff’s claim at step four of the five-step process.
The ALJ found that Plaintiff met the first two steps, but determined at step three that Plaintiff
was not presumptively disabled because she did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff was able to
perform past relevant work as a security guard, machine operator, and cashier, and thus
concluded that Plaintiff has not been under a disability since the alleged onset date of
November 26, 2008. AR 24-30.
D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by (1) rejecting the opinion of the treating physician;
(2) improperly evaluating Plaintiff’s mental impairments; (3) improperly evaluating Plaintiff’s
credibility; and (4) finding that Plaintiff did not require the use of a cane. DE 18 at 24. Plaintiff
therefore requests that this case be reversed and benefits awarded, or, alternatively, remanded
pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration. Id. at 28.
Sentence four of 42 U.S.C. § 405(g) states the following:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing.
42 U.S.C. § 405(g), 1383(c)(3). “In cases where there is an adequate record, the
[Commissioner’s] decision denying benefits can be reversed and benefits awarded if the decision
is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and
evidence to the contrary is lacking.” Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
Furthermore, a court can reverse the decision and immediately award benefits if all essential
8

factual issues have been resolved and the record adequately establishes a claimant’s entitlement
to benefits. Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala,
25 F.3d 316, 318 (1994). The Court will address each of Plaintiff’s assertions of error below.
1. The weight given to the treating physician’s opinion.
Plaintiff argues that the ALJ erred by rejecting the opinion of Dr. P.K. Jain, who
completed a medical source statement (“MSS”) containing severe physical restrictions in August
of 2011. Plaintiff claims that Dr. Jain’s opinion was “sufficiently supported by medical
findings,” and cites as evidence a functional capacity evaluation (“FCE”) completed by a
physical therapist in May of 2007, an x-ray of Plaintiff’s lumbar spine performed in January of
2009, and two MRI studies from 2009 and 2011, respectively. Id. at 25-26. 4
It is well established that an ALJ must give a treating physician’s opinion controlling
weight if the opinion is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R.
§ 404.1527(c)(2)). Although not addressed by Plaintiff, the ALJ in this case suggested, but did

4

Plaintiff’s citations do not correspond to the imaging studies referenced in her brief. For example,
Plaintiff cites an x-ray of Plaintiff’s lumbar spine to pages 359-61 of the administrative record, which
actually consist of handwritten notes by a nurse practitioner. AR 359-61. Plaintiff also cites an MRI from
2009 to pages 463 and 529 of the administrative record, which actually involve an office note from 2006
and a case manager report from Volunteer Behavioral Health Care System. AR 463, 529. However, the
undersigned believes that the studies that Plaintiff attempts to cite have been located and will be
referenced by their appropriate page numbers.
The Court also notes that none of the opinions cited in Plaintiff’s brief include citations to specific page
numbers. Additionally, multiple citations contain typographical errors, one of which prevents the
undersigned from being able to locate the Sixth Circuit opinion that is cited. See DE 18 at 24-25. While
the Court certainly does not expect the parties’ briefs to be typographically flawless, counsel would do
well to at least proofread any memorandum being submitted for review.
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not explicitly find, that Dr. Jain does not qualify as a “treating source” for purposes of 20 C.F.R.
§ 404.1527(c)(2)) by referencing Plaintiff’s testimony that she had only treated with Dr. Jain on
one occasion prior to completion of the MSS. AR 29, 46. The ALJ also noted that Plaintiff’s
single visit with Dr. Jain involved treatment for a rash, and not for any condition at issue in her
claim for disability benefits. AR 29, 46. Defendant contends that this single visit fails to
demonstrate the “ongoing treatment relationship” necessary to establish Dr. Jain’s status as a
“treating source” under 20 C.F.R. § 404.1502. DE 19 at 14. Plaintiff has not responded to this
argument.
Despite these shortcomings, the Court does not agree that Dr. Jain fails to qualify as a
treating source. Plaintiff received treatment from nurses and nurse practitioners with Dr. Jain’s
office at Cookeville Medical Center for nearly a year in 2011. AR 808-68. While these providers
represent “other sources” whose opinions are not entitled to controlling weight, 5 Dr. Jain
discussed findings from imaging studies and made recommendations regarding Plaintiff’s course
of treatment multiple times during this period. AR 810, 818, 827-28, 852. Dr. Jain also ordered
subsequent imaging studies based on Plaintiff’s progress and opined on her condition. AR 852,
869. The Court finds that this involvement in Plaintiff’s treatment is sufficient to constitute an

5

See Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 550 (6th Cir. 2014). The Court notes,
however, the following instruction contained in Social Security Ruling (“SSR”) 06-03p:
With the growth of managed health care in recent years and the emphasis on containing
medical costs, medical sources who are not “acceptable medical sources,” such as nurse
practitioners ... have increasingly assumed a greater percentage of the treatment and
evaluation functions handled primarily by physicians and psychologists. Opinions from
these medical sources who are not technically deemed “acceptable medical sources,”
under our rules, are important and should be evaluated on key issues such as impairment
severity and functional effects, along with the other evidence in the file.
2006 WL 2329939, at *3 (August 9, 2006).
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“ongoing treatment relationship” such that Dr. Jain’s MSS opinion is within the scope of the
“treating physician rule” contained in 20 C.F.R. § 404.1527(c)(2). The issue, therefore, is
whether the ALJ provided good reasons for rejecting Dr. Jain’s opinion.
In addition to Dr. Jain’s lack of actual treatment of Plaintiff, the ALJ provided the
following reasons for rejecting the MSS:
[D]r. Jain’s assessment is incredibly over-restrictive, and thus internally
inconsistent. He remarks about what “the patient states.” Therefore, Dr. Jain’s
conclusions appear to also be tenuous and patently sympathetic to the claimant’s
subjective complaints. Moreover, Dr. Jain’s determinations are unsupported by
the objective medical findings in his treatment records.
AR 29. The restrictions suggested by Dr. Jain are indeed severely restrictive. Dr. Jain opines that
Plaintiff should be held to the lowest possible physical standards with respect to lifting and/or
carrying (less than 10 pounds occasionally) and standing and/or walking (less than two hours per
eight-hour workday). AR 802. Dr. Jain also opined that Plaintiff could sit for less than six hours
during a workday, would be required to miss work more than four times per month, and would
be “incapable of even ‘low stress jobs.’” AR 802-03. Dr. Jain further claimed that Plaintiff’s pain
would “constantly” interfere with her ability to maintain attention and concentration. AR 803.
Notably, Dr. Jain failed to reference any imaging studies as support for the severe
limitations contained in the MSS. Nevertheless, Plaintiff argues that these limitations are
supported by three separate imaging studies, a 2009 x-ray and MRI studies performed in 2009
and 2011. These studies, however, appear to demonstrate relatively normal findings. The 2009
x-ray of Plaintiff’s lumbar spine demonstrated mild scoliosis, with no evidence of compression
and well-maintained intervertebral disc spaces. AR 363. The 2009 MRI of Plaintiff’s lumbar
spine revealed a disc bulge at the L4-5 level, but no evidence of disc herniation or postoperative
scar formation. AR 444. The additional MRI of Plaintiff’s lumbar spine performed in 2011 again
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showed a bulging disc at the L4-5 level, but no evidence of herniation. AR 869. These findings
appear to instead support Dr. Jain’s previous diagnosis of Plaintiff’s lumbar condition as a mere
“back ache.” AR 818.
Dr. Jain’s opinion regarding the severity of Plaintiff’s hip pain is also undermined by
objective medical evidence. Indeed, Dr. Jain reviewed the findings from a 2011 x-ray of
Plaintiff’s hip and noted that such findings were completely normal. AR 852. Despite these
findings, Dr. Jain supported the severe restrictions in the MSS related to lifting, carrying,
standing, walking, and sitting by stating, in part, that “[Plaintiff] has left hip [pain] since 2010
and was told that she has bursitis.” AR 803. Notably, Plaintiff does not dispute the ALJ’s
findings with respect to her hip, instead conceding that a CT of her left hip taken approximately
two months prior to her hearing was completely normal. DE 18 at 12; AR 822. An x-ray of her
left hip just one month before her hearing similarly showed a “[n]ormal left hip,” with “[n]o
fractures, dislocations or destructive lesions.” AR 761.
Dr. Jain’s notation that Plaintiff “was told that she had bursitis” also supports the ALJ’s
decision to reject the MSS based on Dr. Jain’s reliance on Plaintiff’s complaints instead of
objective medical findings. Plaintiff points to no evidence in the record to suggest that she
suffers from bursitis, and the Court sees no indication that Dr. Jain ever diagnosed Plaintiff with
bursitis. Nevertheless, Dr. Jain cites bursitis as support for several of the limitations contained in
the MSS. AR 802-03. As discussed by the ALJ, Dr. Jain additionally relied on Plaintiff’s
subjective complaints to implement environmental limitations. AR 805. Throughout, Dr. Jain
appears to have relied extensively on Plaintiff’s subjective complaints to implement all of the
restrictions contained in the MSS, repeatedly noting that Plaintiff has back pain without
referencing any imaging studies, examination findings, or other objective evidence to support her
12

opinion. AR 803-04. The Sixth Circuit has held, however, that a subjective assessment of pain
symptoms, while relevant to determining whether a claimant suffers from a disability, is not
conclusive evidence that establishes a disability. Warner v. Comm’r of Soc. Sec., 375 F.3d 387,
392 (6th Cir. 2004) (internal citations omitted).
Plaintiff’s citation to an FCE completed by a physical therapist in May of 2007 similarly
fails to support the restrictions contained in the MSS. The FCE cited by Plaintiff does not
demonstrate “chronic inflammation of her left sciatic nerve, trunk stiffness and weakness,” as
she claims (DE 18 at 25), but instead lists raw medical data regarding Plaintiff’s strength and
range of motion. AR 391-95. 6 There is no diagnosis of any condition contained in the FCE,
although it does provide an opinion as to Plaintiff’s “working classification” that, interestingly,
places Plaintiff in the “sedentary – light” level (AR 391), which appears to closely match the
ALJ’s determination that Plaintiff can perform a range of work at the “light” exertion level.
AR 27. The Court also notes that, as discussed in greater detail below, Plaintiff’s previous
treating physician, Dr. Roy Terry, repeatedly found that Plaintiff provided little effort during her
physical examinations during the course of his treatment between 2005 and 2009, thus
undermining the validity of any FCE performed during that time. Regardless, the FCE cited by
Plaintiff does nothing to support the severe restrictions contained in Dr. Jain’s MSS.
Other than this FCE, Plaintiff argues that the ALJ improperly rejected Dr. Jain’s opinion
based solely on three imaging studies of Plaintiff’s lumbar spine, none of which demonstrated
significant findings. Plaintiff makes no argument with respect to her alleged hip pain or wrist

6

Although Plaintiff claims that the FCE stated that she suffered from “chronic inflammation of
her left sciatic nerve, trunk stiffness and weakness,” this quote appears to come from the opinion of the
ALJ who, notably, denied Plaintiff’s previous claims for DIB and SSI. AR 88, 92-93. However, Plaintiff
points to no evidence of such a diagnosis in the record.
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issues even though these conditions were also used as support for the severe restrictions
contained in the MSS. AR 803-05. This is significant in light of the complete lack of objective
medical evidence to support Dr. Jain’s opinion regarding the severity of these conditions as well.
Additionally, as noted by the ALJ, Dr. Jain cited wrist pain as support for Plaintiff’s prescribed
limitations despite the fact that Plaintiff never discussed any problems regarding her wrist with
providers at Cookeville Medical Center. AR 29, 50-51. It was therefore not inappropriate for the
ALJ to discount the MSS based on a lack of objective evidence and Dr. Jain’s apparent
willingness to apply restrictions that would preclude work based solely on Plaintiff’s responses
to questions contained in the MSS regarding the severity of her conditions. AR 29, 48.
Accordingly, the Court finds that substantial evidence supports the ALJ’s rejection of Dr. Jain’s
opinion.
2. The assessment of Plaintiff’s mental impairments.
Plaintiff next contends that the ALJ failed to properly evaluate her alleged mental
impairments. Plaintiff fails to discuss how the ALJ erred in his assessment of her mental
condition, and instead recites the findings from various mental health records that include
uncited case management notes from “United Health Care” and “Plateau Mental Health Center.”
DE 18 at 26-27. 7 According to Plaintiff, these records demonstrate that Plaintiff was “only able
to care for her personal needs three times weekly,” that she needed assistance in performing
activities of daily living, and that she received global assessment of functioning (“GAF”) scores
of 45 and 50 between 2007 and 2010. Id.
7

Plaintiff fails to cite the notes she references from “July 2010,” “September 2010,” and July 19,
2011, and incorrectly cites to records from “Plateau Mental Health Center,” with the citations provided
actually reflecting care received from Tennessee Sports Medicine & Orthopaedics, Occupational Health
Center, and Cookeville Regional Medical Center for physical conditions. DE 18 at 26-27; AR 336-55,
373).
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As an initial matter, Plaintiff provides no explanation as to how these assigned GAF
scores demonstrate a disabling mental impairment. Indeed, Plaintiff fails to even describe the
symptoms associated with the specific GAF scores assigned to her. Regardless, the Court notes
that GAF scores of 45 and 50 are not, by themselves, evidence of a disabling mental impairment.
See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007) (“[T]he record supports a
GAF in the high 40s to mid 50s, which would not preclude [the claimant] from having the mental
capacity to hold at least some jobs in the national economy.”). More importantly, there is
extensive case law from this circuit indicating that GAF scores are not requisite to an ALJ’s
analysis of mental impairment. See Kennedy v. Astrue, 247 F. App’x 761, 766 (6th Cir. 2007)
(“[T]he Commissioner has declined to endorse the [GAF] score for use in the Social Security and
SSI disability programs, and has indicated that [GAF] scores have no direct correlation to the
severity requirements of the mental disorders listings.”) (internal citations and quotations
omitted); Keeler v. Comm’r of Soc. Sec., 511 F. App’x 472, 474 (6th Cir. 2013) (“[T]he ALJ was
not required to consider [the claimant’s] GAF scores[.]”) (internal citations omitted); Kornecky v.
Comm’r of Soc. Sec., 167 F. App’x 496, 511 (6th Cir. 2006) (“[W]e are not aware of any
statutory, regulatory, or other authority requiring the ALJ to put stock in a GAF score in the first
place.”). Plaintiff’s bald reference to GAF scores provides no grounds that the ALJ improperly
assessed Plaintiff’s mental condition.
Further, Plaintiff’s uncited references to “home health care” that she received from a case
manager are similarly unavailing. 8 DE 18 at 26. In fact, the “progress note” from July 19, 2011

8

Again, the Court believes that the records Plaintiff incorrectly cites have been identified, and the
Court will reference these records by their appropriate page numbers. If the Court is mistaken in its
assessment or determination of the records upon which Plaintiff relies, that fault rests with Plaintiff for
not having correctly cited the record in the first instance.
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referenced by Plaintiff actually indicates that her condition was improving, with the case
manager noting that “[p]rogress has been made [] on her mental health goal[.]” AR 787.9
Similarly, Plaintiff notes that she received “respite care” in April of 2010 for anxiety and
depression, but her discharge note indicates that she improved as a result of such care, with
Plaintiff admitting that she gained a “different outlook on life.” AR 578. Plaintiff additionally
notes that she was receiving assistance with respect to her personal hygiene and reporting anxiety
in crowds in September of 2010 (DE 18 at 27), but a case management note from June of 2011
states that “progress has been made on her social goal[.]” AR 790. Plaintiff has therefore failed
to provide any support for her implicit argument that she suffers from a disabling mental
impairment.
The ALJ ultimately concluded that Plaintiff’s “depressive disorder” and “anxiety
disorder” both represented severe impairments. AR 24. However, the ALJ additionally noted the
significant lack of evidence in the record that would support a finding that either of these
impairments caused disabling symptoms: “no treating or examining physician or psychological
counselor placed significant limits on the claimant due to her mental health or indicated that the
claimant is mentally disabled.” AR 30. Plaintiff provides no evidence to rebut this finding, and
instead relies on case management notes documenting counseling sessions with a registered
nurse who has not provided any opinion regarding the severity of Plaintiff’s alleged mental
condition. This is insufficient, as it is the claimant’s burden to prove both a severe impairment
and functional limitations that preclude the claimant’s ability to work. See Key v. Callahan, 109
F.3d 270, 274 (6th Cir. 1997) (“Claimant has the ultimate burden of proving the existence of a

9

The Court notes that one of Plaintiff’s stated goals was to obtain “[i]ncome – to be able to pay
her bills” by applying for disability benefits. AR 787.
16

disability.”) (citing Richardson v. Heckler, 750 F.2d 506, 509 (6th Cir. 1984)); Krakow v.
Comm’r of Soc. Sec., No. 13-14388, 2015 WL 1301300, at *10 (E.D. Mich. Mar. 23, 2015)
(“[S]imply because [a claimant] suffers from certain conditions or carries certain diagnoses does
not equate to disability[.]”). Plaintiff has thus failed to carry this burden with respect to her
alleged mental impairments.
3. The ALJ’s credibility determination.
Plaintiff asserts that the ALJ “erred as a matter of law” in the evaluation of her
credibility. DE 18 at 27. Plaintiff lists the factors found in SSR 96-7p and 20 C.F.R. § 404.1529
that the ALJ is required to consider when assessing a claimant’s credibility, but provides no
discussion as to how the ALJ’s credibility determination was flawed. Indeed, the only actual
argument proffered by Plaintiff includes a statement that, “[t]he statements and reports of
[Plaintiff] both at her hearing and when seeing her doctors are consistent with her reports of
disabling pain, depression and anxiety.” DE 18 at 27.
An ALJ’s credibility finding is entitled to deference due to the ALJ’s “unique opportunity
to observe the claimant and judge her subjective complaints.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001). The ALJ is permitted to “dismiss a claimant’s allegations of disabling
symptomatology as implausible if the subjective allegations, the ALJ’s personal observations,
and the objective medical evidence contradict.” Tyra v. Sec’y of Health & Human Servs., 896
F.2d 1024, 1030 (6th Cir. 1990). The Sixth Circuit has also stated that a claimant who challenges
an ALJ’s credibility determination “face[s] an uphill battle.” Daniels v. Commissioner, 152 F.
App’x 485, 488 (6th Cir. 2005).
The ALJ in this case provided a detailed discussion of his credibility findings. AR 27-30.
He discussed the lack of objective medical findings to support the presence of any significant
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physical medical impairments. AR 28. He similarly noted the lack of any indication in the record
that Plaintiff suffered from a disabling mental impairment. AR 29-30. The ALJ also discussed
Plaintiff’s attempts to gain employment as a medical transcriptionist after graduating with an
associate degree in November of 2010, approximately two years after her alleged disability onset
date, including her failure to follow up on potential employment offers because she “believed the
jobs were out of her area of expertise,” and not due to any medical condition. AR 27, 30.
Plaintiff admitted this during her hearing:
ALJ:

Are you saying these were jobs that didn’t interest you or these
were jobs that you could not perform?

Plaintiff:

Jobs that I could not perform.

ALJ:

And why could you not perform them?

Plaintiff:

I never really – I didn’t take accounting, so –

ALJ:

Out of your area of expertise?

Plaintiff:

Right, yes, sir.

ALJ:

Was that the only reason you did not feel you could perform these
jobs? If someone had emailed you … and said we’d like you to do
some on-line or some type of medical transcription, you think you
might have responded to an email like that?

Plaintiff:

Yes, sir, I might have.

AR 53-54. Finally, the ALJ emphasized the findings of Dr. Donita Keown, who performed a
consultative examination of Plaintiff in July of 2010, which included “significant pain behaviors
and symptom magnification,” as well as “[m]ultiple inconsistencies” with respect to Plaintiff’s
claims of pain. AR 28-29, 624-26. Therefore, contrary to Plaintiff’s assertion otherwise, her
statements both to providers and the ALJ fail to demonstrate consistency that would support her
allegations of disabling pain.
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Consistency between a claimant’s subjective complaints and the record evidence “tends
to support the credibility of the claimant, while inconsistency … should have the opposite
effect.” Rogers, 486 F.3d at 247-48. Moreover, as long as the ALJ cites “substantial, legitimate
evidence to support his factual conclusions, we [must not] second-guess[.]” Ulman v. Comm’r of
Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012). The Court finds that the ALJ well supported his
conclusions with such substantial and legitimate evidence, and thus finds no error in his
credibility determination.
4. Plaintiff’s use of a cane.
Plaintiff’s extremely brief final argument involves her use of a cane. After claiming that a
previous treating physician, Dr. Roy Terry, “prescribed a quad cane” for her in 2006, Plaintiff
cites SSR 96-9 to argue that “[a]n individual who is required to use a cane for walking cannot
perform the six hours of standing and walking required for light work. Even the performance of
sedentary work may be impacted by the use of a cane.” 10
The Court notes that the necessity of Plaintiff’s cane has not been established in the
record, as she claims. It is true that Plaintiff requested that Dr. Terry prescribe a cane for her in
January of 2006, which was granted. AR 470. The record also indicates, however, that Dr. Terry
expressed numerous concerns regarding Plaintiff’s lack of effort and exaggeration of symptoms
that undermine any claim for the necessity of the cane. Immediately prior to her request for a
cane, Dr. Terry denied her request for a walker based on physical therapy records indicating that
there was no need for such a device: “[Plaintiff] did not have any difficulties and had a physical

10

In referencing SSR 96-9p, Plaintiff again fails to provide a specific citation for the passage to
which she refers. Plaintiff instead again asks the Court to locate the particular passage from the 10 pages
that comprise SSR 96-9p.
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therapy assessment in the hospital with no recommendation for a walker[.]” AR 471. Three
months earlier, Dr. Terry questioned the veracity of Plaintiff’s description of her alleged injury,
noting disparities between the history of the injury that she relayed to him and the medical
history documented by another physician. AR 476-77. Approximately three months after she
requested the cane, Dr. Terry noted that Plaintiff was exhibiting “pain behavior” and raised
concerns about Plaintiff’s physical efforts, stating that she “should be able to increase her
activity levels without significant problems.” AR 465-66. Dr. Terry again commented on
Plaintiff’s continued complaints of pain despite “no evidence of any kind of a herniated disc” in
May of 2006. AR 463.
Dr. Terry continued to express concerns regarding Plaintiff’s efforts in June of 2006,
noting that a recent FCE demonstrated an exaggeration of symptoms by Plaintiff:
A complete physical examination does not show evidence of any kind of obvious
strength deficits or obvious weakness, no atrophy, no evidence of any kind of
obvious dermatomal neurologic deficits. It appears that from surgery she has done
ok and actually improved, although her complaints have stayed with her.
AR 461. Dr. Terry again documented Plaintiff’s lack of effort in August of 2006, noting that
“[s]he has no actual strength deficits.” AR 460.
Nearly two years later, Dr. Terry again noted that there was “[n]o evidence of any kind of
problems” with respect to Plaintiff’s claims of leg and back pain, and later commented that
although Plaintiff was not experiencing atrophy and had no visible muscle spasms, she continued
to ambulate “in a crouched over fashion which is not explained by anything anatomically.”
AR 453. In April of 2009, Dr. Terry implied that Plaintiff’s ongoing complaints may be the
result of drug-seeking behavior: “It is notable that I feel the same as Dr. Bryan who did an
Independent Medical Exam for her that she certainly is [sic] high likelihood of being addicted to
narcotics.” AR 452.
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Dr. Keown also expressed skepticism as to the necessity of the cane during her
consultative examination in July of 2010. In addition to noting that Plaintiff failed to “provide
adequate effort” that would permit an evaluation of her strength, Dr. Keown opined that there
was “no reliable objective evidence for use of [a] hand-held assistive device at any time.”
AR 625-26. She also noted that Plaintiff “insists upon using this hand-held assistive device”
despite “using it in the right hand and complaining of left hip pain.” AR 626. She further noted
that Plaintiff was able to climb onto the examining table without assistance. AR 626.
Simply put, there is little evidence in the record to suggest that Plaintiff’s condition
requires the use of cane, other than her subjective complaints of pain. Plaintiff’s paltry argument
that the cane is medically-required does not persuade the Court otherwise. The Court thus finds
no error in the ALJ’s conclusion that Plaintiff is able to perform light work.

V. CONCLUSION
For all of the foregoing reasons, Plaintiff’s motion for judgment on the administrative
record (DE 17) is DENIED. An appropriate Order will accompany this memorandum.

__________________________
BARBARA D. HOLMES
United States Magistrate Judge

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