Jenkins v. Social Security Administration et al

Filing 24

MEMORANDUM Signed by Magistrate Judge Barbara D. Holmes on 9/30/16. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

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

ALLEN JENKINS
v.
CAROLYN W. COLVIN
Acting Commissioner of
Social Security

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No. 2:13-0083
Magistrate Judge Holmes

MEMORANDUM
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 Title II and Title 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). Plaintiff has also filed a subsequent reply to Defendant’s response (Docket Entry
No. 20). This action is before the undersigned for all further proceedings pursuant to the consent
of the parties and the District Judge in accordance with 28 U.S.C. § 636(c) (Docket Entry
No. 23).
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.

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I. INTRODUCTION
Plaintiff filed applications for a period of disability, DIB, and SSI on November 4, 2010.
See Transcript of the Administrative Record (Docket Entry No. 13) at 32-33.1 He alleged a
disability onset date of October 1, 2003, but later amended this to February 4, 2008. AR 10, 24,
32-35. Plaintiff asserted that he was unable to work because of depression and schizophrenia.
AR 32-35.
Plaintiff’s applications were denied initially and upon reconsideration. AR 32-41.
Pursuant to his request for a hearing before an Administrative Law Judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ James A. Sparks on June 18, 2012.
AR 21. On July 27, 2012, the ALJ denied the claim. AR 7-9. On July 18, 2013, the Appeals
Council denied Plaintiff’s request for review of the ALJ’s decision (AR 1-3), 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).

I. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on July 27, 2012. AR 7. 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 September 30, 2013.
2. The claimant has not engaged in substantial gainful activity since October 1,
2003, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

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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.

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3. The claimant has the following medically determinable impairments: probable
dysthymic disorder; rule out malingering; a personality disorder; and a history
of polysubstance abuse (20 CFR 404.1521 et seq. and 416.921 et seq.).
***
4. The claimant does not have an impairment or combination of impairments that
has significantly limited (or is expected to significantly limit) the ability to
perform basic work-related activities for 12 consecutive months; therefore, the
claimant does not have a severe impairment or combination of impairments
(20 CFR 404.1521 et seq. and 416.921 et seq.).
***
5. The claimant has not been under a disability, as defined in the Social Security
Act, from October 1, 2003, through the date of this decision (20 CFR
404.1520(c) and 416.920(c)).
AR 12-15.

II. 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.

III. 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.,

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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
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
his “inability to engage in any substantial gainful activity by reason of any medically

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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 he 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 he is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
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 he suffers from a severe impairment that meets the
12-month 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.

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§§ 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 him presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to his past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [his] 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
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

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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).
C. The ALJ’s Five-Step Evaluation of Plaintiff
In the instant case, the ALJ resolved Plaintiff’s claim at step two of the five-step process.
The ALJ found that Plaintiff met step one, but found at step two that Plaintiff was not disabled
because he did not have an impairment or combination of impairments that significantly limited
(or is expected to significantly limit) the ability to perform basic work-related activities for
12 consecutive months. AR 12. Because the ALJ determined that Plaintiff did not suffer from a
severe impairment at step two, further review under the remaining steps was unnecessary.
AR 12-15.

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D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by: (1) failing to acknowledge the existence of
treatment records from a mental health center in determining that Plaintiff did not have any
severe medically determinable impairments; (2) relying on the consultative examiner’s opinion,
where the examiner did not review the above-mentioned treatment records; and (3) failing to
support his decision to deny benefits based on Plaintiff’s reported daily activities. DE 18 at 5, 10,
12. Plaintiff therefore requests that this case be reversed and benefits awarded, or, alternatively,
that this case be remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further
consideration. Id. at 10, 13.
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
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 addresses each of Plaintiff’s assertions of error below.
1. Treatment records from Volunteer Behavioral Health Care.
The first two of Plaintiff’s three assertions of error pertain to records documenting
treatment he received from Volunteer Behavioral Health Care (“VBHC”). Plaintiff first argues
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that the ALJ committed reversible error by failing to acknowledge this treatment in his opinion,
suggesting that the ALJ ignored the records of this treatment in reaching his decision. DE 18 at
5. Plaintiff lists several of the complaints he reported to the staff at VBHC between May 1, 2008
and May 11, 2012, including his alleged inability to keep a job, lack of motivation, and loss of
interest in pleasurable activities, as well as eight GAF scores he received from VBHC during this
time period. Id. at 8. Relying on the Sixth Circuit’s holding that an ALJ must provide good
reasons for not giving weight to a treating physician’s opinion pursuant to 20 C.F.R.
§ 404.1527(c)(2),2 Plaintiff argues that the ALJ “implicitly excluded” these records
demonstrating the severity of his condition without explaining his reasons for doing so. Id. at
9-10.
It is undisputed that the ALJ failed to reference the VBHC records in his opinion.
However, the Court does not agree with Plaintiff’s assertion that this omission violates the
treating physician rule. For one, the treating physician rule requires the ALJ to provide good
reasons for rejecting the opinion of a treating source. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2)
(emphasis added). Plaintiff’s brief cites neither a treating physician nor an opinion in the VBHC
records that would be subject to such scrutiny by the ALJ. The Court notes that between May 1,
2008 and May 11, 2012, the time period cited by Plaintiff in support of his argument, Plaintiff
saw a physician on just one occasion. AR 198-99. During this visit, which took place on
December 4, 2009, Dr. Donald Atkinson made the following observation: “[Plaintiff] is ok for
the most part but he has some motivation issues but I will not augment yet due to substance
abuse history.” AR 199. The only diagnoses listed in the note included “depressive disorder [not
otherwise specified],” “alcohol dependence,” and “polysubstance dependence.” AR 199.

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Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

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Dr. Atkinson did not, however, provide an opinion regarding any functional limitations caused
by these conditions. See Higgs, 880 F.2d at 863 (“The mere diagnosis … says nothing about the
severity of the condition.”); see also Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 551 (6th Cir.
2014) (“[D]isability is determined by the functional limitations imposed by a condition, not the
mere diagnosis of it.”) (internal citation omitted). Even if Dr. Atkinson had provided an opinion
during this visit, the Sixth Circuit has noted that “a single visit does not constitute an ongoing
treatment relationship.” Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 506 (6th Cir. 2006).
The majority of the VBHC records instead document Plaintiff’s meetings with a case
manager, many of which involve discussions about his application for disability benefits.
AR 186-97, 269-80, 315. The notes documenting these encounters include some discussion of
Plaintiff’s symptoms, but provide no opinion as to any limiting effects of his alleged
impairments. Even if these records included an opinion as to limitations caused by such
impairments, the case manager does not represent an acceptable medical source whose opinion
would be subject to 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2), as Plaintiff alleges. While
the Court does not dismiss the utility of these meetings, the ALJ’s failure to address them does
not violate the treating physician rule.
The remaining records from VBHC cited by Plaintiff involve medication management
provided by registered nurses and medical assistants for depression, alcohol abuse, and THC
abuse. AR 200, 203, 205, 281, 284. The records document consistent mood stabilization when
Plaintiff took prescribed Zoloft. AR 200, 203, 281.3 This includes a visit in March of 2011

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Plaintiff incorrectly cites a note from 2005 in describing symptoms Plaintiff allegedly showed between
May 1, 2008 and May 11, 2012. DE 18 at 8, nn.23, 24, 26. This 2005 visit took place several years before
February 4, 2008, the amended alleged onset of disability. AR 24. Furthermore, the 2005 note indicates
that the symptoms described by Plaintiff were the result of side effects “from being off [Z]oloft for 3 ½
weeks.” AR 219. These symptoms did not warrant psychiatric inpatient treatment, and the treating
counselor opined that Plaintiff’s symptoms would likely resolve from refill of Plaintiff’s Zoloft. AR 223.

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during which Plaintiff reported that he was “doing great on [Z]oloft.” AR 284. Again, these
records include no opinions as to any limiting effects of Plaintiff’s alleged impairments by an
acceptable treating source. The records instead only document Plaintiff’s descriptions of his
symptoms, which, as previously discussed, do not demonstrate disability. See Hill, supra.
The Court is unimpressed by the ALJ’s failure to acknowledge the VBHC notes included
in the administrative record. While there is a difference “between what an ALJ must consider
and what an ALJ must discuss in a written opinion,”4 the Court views the ALJ’s disregard of
these records in the opinion as a misstep in his analysis and a disservice to Plaintiff. However,
the Court reluctantly finds that the omission of these records in the ALJ’s opinion represents
harmless error. As noted by Defendant, the VBHC records include little more than Plaintiff’s
own description of the symptoms he allegedly experienced. Plaintiff does not identify anyone in
the VBHC records who would constitute an acceptable treating source or any opinion regarding
any limiting effects of the symptoms complained of therein.
Nevertheless, Plaintiff argues that “it is crystal clear that an ALJ may not ignore medical
evidence of record,” and points to eight GAF scores assigned by staff at VBHC between May of
2008 and May of 2011 that ranged from 49 to 55. DE 18 at 5, 8-9. However, an ALJ is not
required to discuss all of the evidence in the administrative record, and his “failure to cite
specific evidence in the record does not indicate that it was not considered.” Daniels v. Comm’r
of Soc. Sec., 152 F. App’x 485, 489 (6th Cir. 2005) (quoting Simons v. Barnhart, 114 F. App’x
727, 733 (6th Cir. 2004)). While Defendant correctly notes that discussion of the VBHC records,
including the GAF scores, would have been “helpful” to the ALJ’s explanation for denying
Plaintiff’s claim (DE 19 at 7), the Court does not find that this omission constitutes reversible
Adams v. Comm’r of Soc. Sec., No. 4:13-cv-22, 2014 WL 3368692, at *11 (E.D. Tenn. July 9, 2014)
(quoting Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. 2002)).
4

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error because a GAF score is not “essential” to an ALJ’s determination of a claimant’s RFC.
Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002). The Sixth Circuit has held
that the “failure to reference a [GAF] score is not … sufficient ground to reverse a disability
determination.” DeBoard v. Comm’r of Soc. Sec., 211 F. App’x 411, 415 (6th Cir. 2006) (citing
Howard, 276 F.3d at 241). Moreover, despite the potential value of a GAF score to an ALJ’s
analysis, the 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.” Kennedy v. Astrue, 247
F. App’x 761, 766 (6th Cir. 2007) (internal citations and quotations omitted). See also Kornecky,
167 F.App’x at 511 (“[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.”). Furthermore, “[e]ven
assuming GAF scores are determinative,” scores that are “in the high 40s to mid 50s … would
not preclude [a claimant] from having the mental capacity to hold at least some jobs in the
national economy.” Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007).
The Sixth Circuit has stated that it “do[es] not hesitate to remand when the Commissioner
has not provided ‘good reasons’ for the weight given to a treating physician’s opinion[.]”
Hensley v. Astrue, 573 F.3d 263, 266-67 (6th Cir. 2009) (citing Wilson, 378 F.3d at 545)).
Plaintiff fails, however, to identify any treating physician in the VBHC records whose opinion is
subject to the treating physician rule. This is significant because only an acceptable medical
source can provide a medical opinion establishing the existence of a medically determinable
impairment. SSR 06-03p, 2006 WL 2329939, at *2. Plaintiff has not otherwise provided any
opinion from an acceptable medical source in this case. In contrast, the Commissioner provided
opinions from three different licensed psychologists who opined that Plaintiff’s alleged

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impairments were not severe. AR 15. As such, even if the Court found that reversal of the
Commissioner’s decision was necessary based on the lack of discussion of the VBHC records,
such a finding would serve no purpose because there would still be no reasonable possibility of a
different outcome for Plaintiff. See Kornecky, 167 F. App’x at 507 (“No principle of
administrative law or common sense requires us to remand a case in quest of a perfect opinion
unless there is reason to believe that remand might lead to a different result.”) (citing Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)). The Court declines to reverse the Commissioner’s
decision solely on such procedural grounds.
Plaintiff’s additional argument that reversal is required based on Dr. Linda Blazina’s
failure to reference the VBHC records is similarly unpersuasive. Plaintiff argues that
Dr. Blazina’s report is flawed because there is no indication that she reviewed any of Plaintiff’s
medical records, but points to no regulation or case law requiring that a consultative examiner do
so when assessing a claimant. Notably, there are regulations and court opinions relevant to this
issue, but they do not sustain Plaintiff’s position. Pursuant to SSR 96-6p, an ALJ cannot dismiss
entire sets of medical records from a treating source before according greater weight to an
opinion from a one-time examiner that does not account for all of the relevant records. See
Blakley, 581 F.3d at 409 (“[B]ecause much of the over 300 pages of medical evidence reflects
ongoing treatment and notes by [the claimant’s] treating sources, we require some indication that
the ALJ at least considered these facts before giving greater weight to an opinion that is not
based on a review of a complete case record.”) (internal citations and quotations omitted).
However, Plaintiff has not provided an opinion from a treating source in this case; he instead
relies on notes documenting meetings with case managers and medication management visits
with individuals who do not constitute acceptable treating sources. Therefore, the ALJ did not

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inappropriately discount the opinion of a treating source before giving significant weight to the
consultative examiner’s opinion. See Robinson v. Comm’r of Soc. Sec. Admin., No. 5:14-cv-291,
2015 WL 1119751, at *11 (N.D. Ohio Mar. 11, 2015) (“An ALJ’s unsupported rejection of a
treating source and reliance on non-examining sources without full access to the record appeared
to be the ‘overriding danger’ that existed in Blakley, is not similarly present here.”) (emphasis
added) (internal citation omitted).
Although not cited in Plaintiff’s brief, 20 C.F.R. § 404.1517 also requires that the
government provide any consultative examiner with background information regarding the
subject claimant’s alleged symptoms. However, 20 C.F.R. § 404.1517 “does not place an
imperative on the agency to provide a consultative examiner with a full medical record, but only
explains that ‘[w]e will also give the examiner any necessary background information about your
condition.’” Grant v. Colvin, No. 3:14-cv-399, 2015 WL 4713662, at *13 (E.D. Tenn. Aug. 7,
2015). Plaintiff provided Dr. Blazina with a history of his alleged condition, albeit a
“questionable” history based on inconsistencies between his clinical presentation and his
reported symptoms. AR 246. The ALJ also noted that he based his conclusion on Dr. Blazina’s
examination findings and not on her knowledge of Plaintiff’s medical records. See Grant, 2015
WL 4713662, at *13. Plaintiff nonetheless argues that the ALJ’s reliance on Dr. Blazina’s
opinion was error because Dr. Blazina failed to explain her “contrary conclusions,” ostensibly
contrasting her findings with conclusions from a medical source in the record. DE 18 at 11.
However, as previously discussed, Plaintiff fails to identify any such conclusion from a medical
source in the record. The Court also notes that in addition to Dr. Blazina’s opinion, the ALJ gave
significant weight to the opinions of Drs. Dubois and Thibodeau, both of which were based on a
complete review of the medical record. AR 264, 292.

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Plaintiff points to no authority requiring a consultative examiner’s opinion to be rejected
based on a failure to review case management notes and medication management visits. See
Grant, 2015 WL 4713662, at *13 (“If the Court were to adopt the Plaintiff's argument, any
consultative examiner should be summarily dismissed if their opinion was submitted without full
review of a plaintiff’s medical record or predated any treatment records. The Court is unaware of
such a rule and finds no error in the weight assigned [to the consultative examiner].”). Plaintiff’s
argument therefore fails.
2. The ALJ’s discussion of Plaintiff’s daily activities.
Plaintiff’s final assertion implicitly suggests that the ALJ erred in his credibility finding.
The ALJ determined that Plaintiff’s statements regarding the severity of his symptoms were “not
credible to the extent they are inconsistent” with the ALJ’s finding that none of Plaintiff’s
alleged impairments were severe in nature. AR 13. Plaintiff claims that the ALJ’s conclusion that
Plaintiff’s daily activities were generally not the type of activities of an individual with a totally
disabling condition is contrary to the evidence of record. Plaintiff even suggests that “there is
literally nothing in [his] description of his daily activities to support the ALJ’s decision.” DE 18
at 13. The evidence of record, however, suggests otherwise.
Plaintiff relies primarily on a function report from 2010 in which he described problems
with concentration, organization, and timeliness.5 DE 18 at 12-13; AR 145-52. However, he later
reported that he had no problem operating a vehicle, shopping for groceries, doing housework,
and cooking meals. AR 248-49. He also stated that he was able to manage his own money and
pay his own bills, and that he was “home sitting” for an individual teaching in Japan. AR 248-49.
He further stated that while he does not dress or bathe on a regular basis, he does not require any

5

Notably, Plaintiff was on time for his appointment with Dr. Blazina. AR 246.

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help in performing such tasks. AR 26, 248. Plaintiff claims that he was once fired from a job for
making inappropriate comments to a coworker (DE 18 at 12), but he points to no evidence
suggesting a link between this behavior and his alleged mental impairment.
Additionally, and perhaps most significantly, Plaintiff reported in February of 2011 that
he was working at Honda of Cookeville on a part-time basis. AR 248. He reported that he had
been employed in this capacity for five months, meaning that he was engaged in part-time work
at the time he completed the aforementioned function report, which was also after the alleged
onset of disability. AR 24, 160. The ALJ determined that such employment did not represent
disqualifying substantial gainful activity, but noted that it indicated an ability to do more than
Plaintiff had reported he was able to do. AR 14. This also supports Dr. Blazina’s suggestion of
malingering by Plaintiff during his examination. AR 249. For these reasons, the Court finds that
there is substantial evidence to support the ALJ’s finding that Plaintiff has, at most, mild
limitation with respect to his activities of daily living. AR 14.
Plaintiff argues that the primary error in this case was the ALJ’s failure to find that
Plaintiff’s alleged mental impairments were severe. DE 20 at 2. Plaintiff relies heavily on the
ALJ’s failure to discuss the VBHC records, but fails to identify any opinion in those records
regarding any limiting effects of Plaintiff’s alleged condition. This is significant because the
regulations require the Commissioner to “evaluate every medical opinion we receive.” 20 C.F.R.
§ 404.1527(c) (emphasis added). See also 20 C.F.R. § 404.1527(b) (“In determining whether you
are disabled, we will always consider the medical opinions in your case record[.]”) (emphasis
added). Plaintiff lists in great detail many of the symptoms he reported to various staff members
at VBHC, but points to no opinion from a medical provider that demonstrates any limiting
effects caused by his alleged impairment. See Davis v. Astrue, No. 2:11-cv-00062, 2012 WL

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2324396, at *8 (M.D. Tenn. June 19, 2012) (affirming ALJ’s denial of claimant’s application for
DIB and SSI based on lack of notations or opinions by physicians to support claimant’s alleged
disability); Barber v. Comm’r of Soc. Sec., No. 13-14098, 2014 WL 5307161, at *17 (E.D. Mich.
Oct. 16, 2014) (“[P]laintiff points to no medical source opinions that show that the alleged
symptoms amount to impairment.”).
The Court reiterates that the ALJ’s failure to reference the VBHC records in his opinion
was imprudent. However, the Court finds that this omission in this case represents harmless error
based on the lack of any opinion in the VBHC records from an acceptable treating source
regarding any limitations caused by Plaintiff’s alleged symptoms. While step two of the
evaluation process delineated by 20 C.F.R. § 404.1520 is a de minimis hurdle in the disability
determination process,6 it is still the claimant’s burden to prove the existence and severity of
limitations caused by his impairments. Jones, 336 at 474. The mere diagnosis of an impairment
is not enough to demonstrate disability; the claimant must also prove severity and functional
impact. Jones v. Comm’r of Soc. Sec., No. 13-cv-14217, 2015 WL 1004681, at *8 (E.D. Mich.
Mar. 6, 2015) (citing Foster, 853 F.2d at 489)). See also Krakow v. Comm’r of Soc. Sec., No. 1314388, 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[.].”). In
this case, Plaintiff has provided no real medical proof of any disabling impairment. The ALJ thus
appropriately relied on the opinions of Dr. Blazina and two state agency psychological
consultants, all of whom concluded that Plaintiff’s alleged impairments were not severe. AR 15.
Any error pertaining to the VBHC records is therefore harmless, as an administrative decision
should not be reversed and remanded if doing so would merely be “an idle and useless

6

Higgs, 880 F.2d at 862-63.

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formality.” Collette v. Astrue, No. 2:08-cv-085, 2009 WL 32929, at *9 (E.D. Tenn. Jan. 6, 2009)
(citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004)). Accordingly, the
Court affirms the ALJ’s decision to deny Plaintiff’s application.

IV. CONCLUSION
For the above stated 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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