Roberts v. Social Security Administration
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 6/13/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
JOEL TODD ROBERTS
acting Commissioner of the
Social Security Administration
Pending before the court is the Plaintiff’s Motion For Judgment On The Administrative
Record (Docket No. 15), and the Defendant’s Response (Docket No. 17) in opposition. For the
reasons set forth herein, the Plaintiff’s Motion is DENIED, and the decision of the Social
Security Administration is AFFIRMED.
II. Procedural Background
This appeal arises out of the Plaintiff’s June 2011 application for supplemental security
income under the Social Security Act that was denied by the Social Security Administration.
(Administrative Record (“AR”), at 68, 168 (Docket No. 11)). The Plaintiff had filed a previous
application for benefits, which was heard by an administrative law judge (“ALJ”) on May 11,
2010, and denied in a decision issued on June 23, 2010. (Id., at 68, 111-117). In reaching his
decision, the ALJ found that the Plaintiff had the severe impairments of “surgery for a fractured
hip and chronic back pain,” and was limited to the following residual functional capacity
Nancy Berryhill became acting Commissioner for the Social Security Administration
on January 23, 2017.
(“RFC”): light work except that he could stand/walk for four hours of an eight-hour workday
with normal breaks, but was precluded from all climbing of ramps, ropes and ladders, and must
avoid all work hazards, such as moving machinery and heights. (Id., at 68, 113). The ALJ
concluded that the Plaintiff could perform the jobs of production inspector, hand packager, and
production laborer. (Id., at 68, 117). The Plaintiff did not appeal. (Id., at 68).
With regard to the June 2011 application, after receiving initial denials of the application,
the Plaintiff requested a hearing, which was held by another ALJ on March 4, 2013. (Id., at 68,
80-107, 136). The Plaintiff appeared at the hearing with counsel, and testified in support of his
The ALJ issued a written decision on May 13, 2013, finding that although the Plaintiff’s
condition was not materially changed since the previous decision, the Plaintiff’s residual
functional capacity limited him to unskilled sedentary work. (Id., at 68). Nevertheless, the ALJ
concluded, the Plaintiff was not disabled. (Id.) In reaching his decision, the ALJ made the
following specific findings:
1. The claimant has not engaged in substantial gainful activity since June 13,
2011, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: history of surgery for
fractured hip and chronic back pain (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform the full range of sedentary
work as defined in 20 CFR 416.967(a).
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on July 4, 1967 and was 43 years old, which is defined
as a younger individual age 18-44, on the date the application was filed. The
claimant subsequently changed age category to a younger individual age 45-49 (20
7. The claimant has a limited education and is able to communicate in English
(20 CFR 416.964).
8. Transferability of job skills is not material to the determination of disability
because applying the Medical-Vocational Rules directly supports a finding of ‘not
disabled,’ whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
9. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 416.969, and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security
Act, since June 13, 2011, the date the application was filed (20 CFR 416.920(g)).
(AR, at 70-74).
The Appeals Council denied the Plaintiff’s request for review of the ALJ decision (AR, at
1-7), which became the final decision of the Social Security Administration (“SSA”). Sims v.
Apfel, 530 U.S. 103, 107, 120 S. Ct. 2080, 2083, 147 L. Ed. 2d 80 (2000). This action, seeking
review of that decision, has been timely filed, and the Court has jurisdiction under 42 U.S.C. §
405(g) to adjudicate it.
III. The ALJ Hearing
At the hearing before the ALJ, the Plaintiff testified that he was 45 years old and had
dropped out of school in the eleventh grade. (AR, at 83). The Plaintiff further testified that he
was divorced and had lived with his mother and father since 2007. (Id., at 83). According to the
Plaintiff, his father was bedridden and his mother was a cancer survivor with back problems. (Id.,
at 84). The Plaintiff testified that he was a smoker, but had reduced his smoking to four cigarettes
a day. (Id., at 85). The Plaintiff described his past occupation as a laborer in the home
construction industry. (Id., at 86-87).
According to the Plaintiff, his most serious medical problem was his back, then his right
hip, and then his left shoulder. (Id., at 87-88). The Plaintiff testified that he also suffered from
depression, which he said bothered him more than his shoulder and hip. (Id.) In describing his
back problem, the Plaintiff testified that he was in constant pain, but that the degree of pain
varies. (Id., at 90). When his back pain is bad, the Plaintiff testified, he stays in the bed all day.
(Id., at 90-91). The Plaintiff rated his pain on a scale of zero to ten, increasing in severity, as an
eight on a bad day and a three or four on a good day. (Id., at 91).
The Plaintiff described the accidents in which he had been involved, including an
accident that occurred on April 10, 2006 in which his hip was injured when the horse he was
riding was struck by a truck. (Id., at 91-92). As a result of that accident, the Plaintiff testified, he
could no longer perform the construction work he had performed prior to the accident. (Id., at 9293). The Plaintiff testified that he still suffered from hip pain, which he rated as a six or seven on
a scale of zero to ten. (Id., at 93).
According to the Plaintiff, his shoulder pain began approximately one year prior to the
hearing. (Id., at 93). The Plaintiff testified that his shoulder pain occurs about once a month,
generally lasting a few days, and that the pain can reach an eight on the ten-point scale. (Id., at
Regarding his mental condition, the Plaintiff indicated that he began going to the Plateau
Mental Health Center in October 2010 because he was suffering from depression. (Id., at 95-96).
The Plaintiff testified that he tried to commit suicide a year or so after his accident but could not
go through with it. (Id., at 96). Although he was given medications by the doctors at Plateau, the
Plaintiff explained, the medications made him sick and did not help. (Id.) After a few months,
the Plaintiff said he began to see care providers at Personal Growth and Learning Center. (Id., at
96-97). Those care providers focused more on talking to him rather than using drugs, the
Plaintiff testified, and he preferred that approach. (Id., at 97). The Plaintiff indicated that he had
been taking Seroquel, which was prescribed by Personal Growth providers to help him sleep.
(Id.) The Plaintiff explained that he did not want a medication that would knock him out because
he needed to be able to hear his father in case he was needed during the night. (Id.) Although he
helped out with his father, the Plaintiff testified, he was limited in that regard by his back pain.
The Plaintiff then discussed his difficulties with academics as a child and his bouts of
depression. (Id., at 99). The Plaintiff explained that the depression led him to cut himself as a
child, and that he had cut himself within the last six months. (Id., at 99). The Plaintiff also
described difficulties with his mind racing, his lack of appetite, crying practically every day, and
being around other people. (Id., at 99-101). The Plaintiff did describe occasional visits with his
neighbors. (Id., at 101). In addition, to his back, hip, shoulder, and depression, the Plaintiff
testified that his left hand occasionally cramps. (Id., at 102).
The Plaintiff testified that he occasionally helped with housework, such as doing the
dishes, feeding his father or vacuuming the house, but had not been able to do yard work since
the summer of 2012. (Id., at 103). According to the Plaintiff, his ability to sit and stand varies
from day to day, and estimated that on some days, he could sit for 45 minutes to an hour without
pain. (Id., at 103-104). The Plaintiff testified that he could walk, on a good day, for about 15
minutes, albeit with a limp. (Id., at 104-05). For the last several months, the Plaintiff said, he had
been lying down most of the day. (Id., at 105).
A. Standard of Review
This court’s review of the SSA decision to deny benefits is “‘limited to determining
whether the Commissioner’s decision is supported by substantial evidence and was made
pursuant to proper legal standards.’” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir.
2016)(quoting Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405-06 (6th Cir. 2009)).
“Substantial evidence” constitutes “‘more than a scintilla’ but less than a preponderance” and is
“such ‘relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Id. (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). In making that
determination, the court is to examine the evidence in the record as a whole and “‘take into
account whatever in the record fairly detracts from its weight.’” Conner v. Comm’r of Soc. Sec.,
658 F. App’x 248, 253 (6th Cir. 2016)(quoting Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.
1990)). If the court finds substantial evidence to support the decision, it must affirm and “may
not inquire whether the record could support a different decision.” Id. The court may not resolve
conflicts in evidence or decide questions of credibility. Id.; Ulman v. Comm’r of Soc. Sec., 693
F.3d 709, 713 (6th Cir. 2012). If the ALJ fails to follow agency rules and regulations, however,
his or her decision is not supported by substantial evidence, even if the ALJ’s conclusion may be
justified based upon the record. Miller, 811 F.3d at 833.
B. The Five-Step Analysis
The Social Security Act defines “disability” as the “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). A “physical or mental
impairment” is defined as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
In determining whether the claimant is disabled within the meaning of the Social Security
Act, the ALJ is to apply a five-step sequential analysis set forth in the applicable regulations. See
20 C.F.R. § 404.1520(a); 416.920; Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 627-28 (6th
Cir. 2016). “If the claimant is found to be conclusively disabled or not disabled at any step, the
inquiry ends at that step.” Id., at 627 (quoting Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652
(6th Cir. 2009)). The analytical framework is as follows:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment – i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities – the claimant is not
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
Kepke, 636 F. App'x at 627-28. The burden of proof is on the claimant through the first four
steps of the analysis, but then shifts to the Commissioner, if the analysis reaches the fifth step, to
“‘identify a significant number of jobs in the economy that accommodate the claimant's residual
functional capacity. . . ‘” Id., at 628 (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390
In this case, the ALJ found the Plaintiff was capable of performing unskilled sedentary
work. (AR, at 68, 74). The Social Security regulations define “sedentary work” as follows:
(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.
20 C.F.R. § 416.967(a).
C. Plaintiff’s Statement of Errors
1. Error in adopting the prior ALJ decision
The Plaintiff first claims that the ALJ erred in adopting the prior ALJ’s opinion denying
disability benefits because that ALJ did not consider his mental impairment.
As discussed above, the Plaintiff had filed a previous application for benefits that was
denied in a decision issued on June 23, 2010. In that decision, the ALJ found that the Plaintiff
had the severe impairments of “surgery for a fractured hip and chronic back pain,” and was
limited to the following RFC2: light work except that he could stand/walk for four hours of an
“Residual functional capacity” is an assessment of the claimant’s “remaining capacity
for work” once his limitations have been taken into account. Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 239 (6th Cir. 2002); 20 C.F.R. § 416. 945. In determining the RFC, the ALJ is required
to consider the combined effect of all of the claimant’s ailments. 42 U.S.C. § 423(d)(2)(B). See
also Glenn v. Comm'r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014). The RFC is to be based on
all relevant medical and other evidence. Howard, 276 F.3d at 239; 20 C.F.R. § 416. 945.
eight-hour workday with normal breaks, but was precluded from all climbing of ramps, ropes and
ladders, and must avoid all work hazards, such as moving machinery and heights. (AR, at 68,
113). The ALJ concluded that the Plaintiff could perform the jobs of production inspector, hand
packager, and production laborer, and was not disabled. (Id., at 68, 117).
In the opinion that is the subject of this appeal, the ALJ described this procedural history,
and then stated:
The claimant chose not to appeal Judge Grissom’s decision, but instead
protectively filed another application for disability on June 13, 2011. He again
proceeded to the hearing level. The claimant was represented by Donna Simpson,
an attorney. At a hearing held on March 4, 2013, in Cookeville, Tennessee, the
claimant again testified concerning his medical problems. However, upon review
of the medical evidence and the hearing testimony, there was no evidence of any
material change in his condition. As a result, I find essentially no material change
other than I feel that he is limited to unskilled sedentary work, and I arrive at the
same conclusion as Judge Grissom, i.e., that the claimant is not disabled, pursuant
to Medical-Vocational Rule 201.19, which directs a finding of ‘not disabled.’
(AR, at 68).
Although the ALJ indicated that there was no evidence of any material change in the
Plaintiff’s condition, the clear language of the opinion reveals that he did not “adopt” Judge
Grissom’s prior opinion. Indeed, the ALJ clearly states that his conclusion about the type of work
the Plaintiff is able to do is more favorable to the Plaintiff than the prior opinion. Furthermore,
the ALJ clearly considered, and discussed at some length, the Plaintiff’s allegations of a mental
impairment. The ALJ did not merely adopt the prior ALJ’s opinion, and this statement of error is
2. Error in analyzing the Plaintiff’s pain
The Plaintiff argues that the ALJ erred in analyzing his allegations of disabling pain by
rejecting all physicians’ opinions in the record, and by misconstruing his testimony at the
Under Sixth Circuit precedent and the applicable regulations, in analyzing allegations of
disabling pain, the ALJ is to determine whether there is objective medical evidence of an
underlying medical condition. Pasco v. Comm’r of Soc. Sec.,, 137 F. App’x 828, 834-35 (6th Cir.
2005 (citing Duncan v. Sec. of Health and Human Services, 801 F.2d 847, 853 (6th Cir. 1986));
20 C.F.R. § 416.929; Soc. Sec. Rul. 96-7p. If there is objective medical evidence, then the ALJ
must decide if it (1) confirms the severity of the alleged pain arising from the condition; or (2) is
of such a severity that it can be expected to produce the disabling pain. Id.
In evaluating the Plaintiff’s subjective complaints about the intensity and persistence of
symptoms, such as pain, the ALJ is to consider such factors as: (1) the claimant’s daily activities;
(2) the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating
and aggravating factors; (4) the type, dosage, effectiveness and side effects of any medication
taken to relieve the symptoms; (5) treatment, other than medication received, to relieve the
symptoms; (6) measures used to relieve the symptoms; and (7) other factors concerning
functional limitations and restrictions as a result of the symptoms. 20 C.F.R. § 416.929(c); Soc.
Sec. Rul. 96-7p.
An ALJ’s analysis of the credibility of a claimant is accorded “‘great weight and
deference particularly since the ALJ has the opportunity, which we do not, of observing a
witness's demeanor while testifying.’” Sorrell v. Comm'r of Soc. Sec., 656 F. App'x 162, 173 (6th
Cir. 2016)(quoting Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)). Although
subjective complaints of a claimant can support a claim for disability, those claims may be
discounted if they are inconsistent with the objective evidence in the record. Id.
In his opinion, the ALJ recited the standards set forth in the applicable regulations and
applied them as follows:
As for the opinion evidence, the opinion of Michael T. Cox, M.D., who performed
a consultative examination of the claimant in February 2013, at the request of the
claimant’s representative, is given little weight, as Dr. Cox did not have the
benefit of the medical records (Exhibit B22F). In particular, Dr. Cox noted that
the claimant had a limp on the right leg when he walked, yet when he underwent a
consultative examination by Donita Keown, M.D., in August 2011 (Exhibit B7F),
the examiner noted that the claimant was occasionally limping on the left, and
other times on the right and he ambulated in an inconsistent pattern. In addition,
the limitations assessed by Dr. Cox are inconsistent with the objective diagnostic
test results, which have been relatively benign. For instance, lumbar spine x-rays
performed in August 2010 showed only mild degenerative disc disease L4-5 and
L5-S1 and scoliosis (Exhibit B2F) and Dr. Cox noted that x-rays performed in
conjunction with his examination of the claimant showed a hip with an orthopedic
pin in good position.
Consultative examiner Joshua D. Hagan, M.D., opined that the claimant would
have difficulties performing the tasks in his job as a laborer (Exhibit B13F). Dr.
Hagan’s statement addresses a vocational issue that is reserved to the
Commissioner (Social Security Ruling 96-5p), thus it is given little weight.
State agency medical consultant Celia Gulbenk, M.D., reviewed the claimant’s
records in December 2011, and found that the claimant could perform a range of
medium work, with frequent climbing of ramps and stairs, balancing, stooping,
and kneeling, and occasional climbing of ladders, ropes, and scaffolds, crouching
and crawling (Exhibit B15F). In giving the claimant some benefit of the doubt, the
undersigned gives Dr. Gulbenk’s opinion little weight, and finds that the claimant
is limited to unskilled sedentary work as defined in the regulations. The
claimant’s testimony that, if he could get a simple job where he was sitting all
day, he could do such a job is supportive of this finding.
(AR, at 72-73).
The ALJ is required to “evaluate every medical opinion and consider the following nonexhaustive factors in deciding what weight to give each opinion: examining relationship,
treatment relationship, the extent to which medical signs and laboratory findings support the
opinion, the consistency of the opinion with the record as a whole, and the specialization of the
doctor rendering the opinion.” Poe v. Comm’r of Soc. Sec., 342 Fed. App’x 149, 156 (6th Cir.
2009)(citing 20 C.F.R. § 416.927(d)).
The ALJ’s decision to assign “little weight” to Dr. Cox’s opinion is supported by his
explanation and the record in this case. Dr. Cox opined that, in an eight-hour workday, the
Plaintiff could lift and/or carry 10 pounds occasionally, and less than 10 pounds frequently; stand
and/or walk for at least two hours; and sit for about six hours. (Id., at 567). In addition, Dr. Cox
opined that the Plaintiff could push and/or pull up to ten pounds with his legs for up to four hours
a day, and would need to alternate sitting and standing as needed every 30 minutes. (Id., at 568).
Dr. Cox further opined that the Plaintiff could never perform postural activities, but had no
manipulative or environmental limitations. (Id., at 569-570).
The records of his medical evaluation, however, do not support these limitations. The xrays ordered and reviewed by Dr. Cox showed no abnormalities with the Plaintiff’s hip, and that
his spine was normal with some modest arthritic change between L3 and L5. (AR, at 573-575).
Dr. Cox does not otherwise state the basis for his opinion other than the Plaintiff’s allegations of
pain and the observation of the Plaintiff’s limp on the right leg. (Id., at 572-573).
As the ALJ explained, Dr. Cox did not indicate that he had reviewed the Plaintiff’s
medical records, and had he done so, he would have noted Dr. Keown’s notes regarding the
Plaintiff’s inconsistent limping, and her opinion that the Plaintiff did not provide reliable effort.
(Id., at 353-354). Dr. Cox also states in his opinion that no diagnostic tests had been performed
on the Plaintiff since 2007. (Id., at 572). A series of x-ray reports in the record reveals otherwise:
– an x-ray of the Plaintiff’s spine on April 19, 2009 reveals “[n]o acute fracture or
dislocation,” “minimal scoliosis” and “[d]isc space height narrowing at the L4-5
and L5-S1 levels;”
– an x-ray of his spine on June 18, 2009 showed “[n]o significant change. . .
[m]ild scoliosis and mild degenerative change at L5-S1, and to a lesser degree L4L5;”
– an x-ray of his spine on January 26, 2010 showed “[n]o significant change. . .
[n]o acute injury of the lumbar spine” and “[m]inor scoliosis possible positional;”
an x-ray of his pelvis on that same date showed “[n]o acute skeletal or joint
abnormality;” an x-ray of his hip on that same date showed “[n]o acute
– an x-ray of his hip on August 6, 2010 showed “[p]ostoperative change” and
“[n]o acute fracture or dislocation;”
– an x-ray of his spine on August 30, 2010 revealed “[m]ild degenerative disc
disease, L4-5, L5-S1,” “mild scoliosis,” and “[n]o acute skeletal or joint
– an x-ray of his spine on May 19, 2011 revealed some “[m]ild scattered
degenerative changes,” but [n]o significant focal or acute bony abnormality
appreciated;” an x-ray of his shoulder on that same date revealed that it was
– an x-ray of his shoulder on June 16, 2011 showed it was “normal.”
(Id., at 12-17, 19, 21, 23, 25, 27). The ALJ’s decision to assign little weight to the opinion of Dr.
Cox is supported by substantial evidence. In any event, the ALJ’s conclusion that the Plaintiff
was limited to sedentary work incorporates much of the Dr. Cox’s opinion regarding the
Plaintiff’s exertional limitations.
The ALJ’s explanation for assigning little weight to Dr. Hagan’s opinion is also
substantially supported. In an evaluation of the Plaintiff conducted on November 5, 2011, Dr.
Hagan does not identify specific limitations caused by the Plaintiff’s condition, but simply
concludes as follows :
This is a 44-year old male who has had a prior accident resulting in hip and back
pain. He has progressive back pain that seems to be limiting his ability to walk
and move, in addition to his right hip pain limiting the amount that he can walk
and activities that he can do. He does not have any clear chronic major injury to
his left rotator cuff and no clear symptoms. Given his job as a laborer, he would
by this assessment appear to have difficulties performing these tasks given his
degenerative changes to his back and hip.
(Id., at 391). As the ALJ explained, a physician’s opinion on issues reserved to the
Commissioner, such as whether an individual has the ability to do past relevant work, are never
entitled to controlling weight or given special significance. Soc. Sec. Rul. 96-5p; 20 C.F.R. §
416.927(d). In any event, the ALJ’s conclusion that the Plaintiff was unable to perform his past
relevant work as a steel work and carpenter is consistent with Dr. Hagan’s opinion that he could
no longer work as a laborer.
As for Dr. Gulbenk’s opinion that the Plaintiff could perform a range of medium work,
the ALJ’s decision to assign it little weight actually works in favor of the Plaintiff. In concluding
that the Plaintiff was limited to unskilled sedentary work, the ALJ explained that he was giving
the Plaintiff the benefit of the doubt. (Id., at 73). The Plaintiff has not shown any error by the
ALJ in that regard.
The Plaintiff argues that the ALJ’s conclusions are inconsistent with the the x-rays
described above showing mild degenerative disc disease and mild scoliosis, as well as the records
indicating that emergency room doctors administered pain medication to the Plaintiff during
several of his emergency room visits. This evidence is not sufficient, however, to undermine the
ALJ’s conclusion that the Plaintiff’s symptoms are not as severe as he alleges.
The Plaintiff also argues that the ALJ misconstrued his hearing testimony by stating that
the Plaintiff testified he could perform a job where he was sitting all day. The court agrees that
the Plaintiff’s testimony in that regard is ambiguous:
Q. What if you were to get a simple job where all you had to do is sit all day
where you could get up and move around, would you take something like that?
A. If I could, yes.
Q. If you could do it or if you could –
A. If I could do it, yes. It’s just sitting and – I’m constantly in pain.
A. It eases off for a little bit and then comes back hard.
(AR, at 87). That the Plaintiff does not agree he is able to do sedentary work, however, does not
detract from the ALJ’s opinion, which is otherwise supported by substantial evidence.
3. Error in analyzing the Plaintiff’s mental limitations
The Plaintiff also argues that the ALJ erred in assessing his mental limitations. The ALJ
determined that the Plaintiff’s depressive disorder and generalized anxiety disorder were not
severe impairments. In reaching this finding, the ALJ applied the evidence in the record in the
context of the four broad functional areas set out in the disability regulations for evaluation of
The first functional area is activities of daily living. In this area, the claimant has
mild limitation. The claimant reported that he had no problems performing
personal care; he cooked, drove, shopped for groceries and was able to manage
money. During a consultative psychological evaluation by Roy Bilbrey, Ph.D., in
February 2013, the claimant reported that he spent time taking care of his
bedridden father, and that he also watched television, washed dishes, and
completed laundry chores. He also performs some outdoor work, as he told his
mental health clinician in April 2012 that he had helped his elderly neighbor pull
out a tree stump and he was working in the garden (Exhibits B3E, B16F, and
The next functional area is social functioning. In this area, the claimant has mild
limitation. The record shows that the claimant retains the capacity to interact
appropriately and communicate effectively with others. The claimant told Dr.
Bilbrey that he occasionally talked to his neighbors, and his son visited him
(Exhibit B21F). The claimant is apparently able to function in an appropriate
manner in the public domain in such places as doctor’s offices, grocery stores, and
other facilities. The claimant demonstrated no abnormal social behaviors during
The third functional area is concentration, persistence or pace. In this area, the
claimant has no limitation. The records shows that the claimant’s concentration
skills allow for the completion of assigned tasks. At the hearing, the claimant was
able to understand and follow the hearing proceedings and all lines of questioning.
The claimant was able to complete all of the testing procedures during the
psychological consultative examination by Dr. Bilbrey, and he reported that he
spent time watching television, which suggests that he is able to understand and
follow television programs. By virtue of the claimant’s ability to drive a car, cook,
and manage money, he has demonstrated the ability to at least successfully
perform simple, routine, one to two step tasks.
The fourth functional area is episodes of decompensation. In this area, there is no
evidence that the claimant has experienced any episodes of decompensation.
Because the claimant’s medically determinable mental impairments cause no
more than ‘mild’ limitation in any of the first three functional areas and ‘no’
episodes of decompensation which have been of extended duration in the fourth
area, they are nonsevere (20 CFR 416.920a(d)(1)).
The limitations identified in the ‘paragraph B’ criteria are not a residual functional
capacity assessment but are used to rate the severity of mental impairments at
steps 2 and 3 of the sequential evaluation process. The mental residual functional
capacity assessment used at steps 4 and 5 of the sequential evaluation process
requires a more detailed assessment by itemizing various functions contained in
the broad categories found in paragraph B of the adult mental disorders listings in
12.00 of the Listing of Impairments (SSR 9608p). Therefore, the following
residual functional capacity assessment reflects the degree of limitation the
undersigned has found in the ‘paragraph B’ mental functional analysis.
(AR, at 71-72).
Later in the opinion where he explains the finding regarding the Plaintiff’s RFC, the ALJ
assessed the medical opinions relating to Plaintiff’s mental condition as follows:
Little weight is given to the opinion of Roy Bilbrey, Ph. D., who performed a
consultative psychological examination of the claimant in February 2013, at the
request of the claimant’s representative. Among other limitations, Dr. Bilbrey
assessed that the claimant had marked limitations in all of the following workrelated mental functions: maintaining regular attendance and being punctual
within customary, usually strict, tolerances; completing a normal workday and
workweek without interruptions from psychologically based symptoms; accepting
instructions and responding appropriately to criticism from supervisors; dealing
with normal work stress; and maintaining socially appropriate behavior. These
limitations are inconsistent with the Global Assessment of Functioning score of
58 that Dr. Bilbrey assigned to the claimant (Exhibit B21F). According to The
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), Global
Assessment of Functioning (GAF) scores between 51 and 60 indicate only
moderate symptoms OR moderate difficulty in social, occupational, or school
State agency psychological consultant M. Candice Burger, Ph.D., reviewed the
claimant’s records in July 2011 and found that the claimant had no severe mental
impairments (Exhibit B4F). State agency psychological consultant P. Jeffrey
Wright, Ph.D., reviewed the claimant’s records in October 2011, and agreed with
Dr. Burger’s assessment (Exhibit B12F). The opinions of Dr. Burger and Dr.
Wright are given considerable weight, as they are consistent with the mental
health treatment records and examination findings (Exhibit B4F).
(Id., at 73).
The GAF score is a subjective determination that reflects the clinician’s judgment of
the individual’s overall level of functioning. Bowman v. Comm'r of Soc. Sec., 2017 WL 1065553,
at *1 (6th Cir. Mar. 21, 2017)(citing Deboard v. Comm’r of Soc. Sec., 211 F. App’x 411, 415 (6th
Cir. 2006)). During the time period at issue here, a GAF score of 41-50 indicated “‘serious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job).’” Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 503 (6th Cir. 2006)(quoting DSMIV-TR at 34). A GAF score of 51-60 indicated “‘[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).’” Id. The Sixth Circuit
has explained that “[a] GAF score may help an ALJ assess mental RFC, but it is not raw medical
data.” Id., at 503 n.7.“Rather, it allows a mental health professional to turn medical signs and
symptoms into a general assessment, understandable by a lay person, of an individual's mental
The Plaintiff contends that the ALJ erred in assigning little weight to Dr. Bilbrey’s
opinion without discussing the records of his treating psychologists or psychiatrists from Plateau
Mental Health Center or Personal Growth and Learning Center. Having reviewed those records,
the court is not persuaded that they undermine the ALJ’s finding. Those records indicate that the
Plaintiff was diagnosed with depression and anxiety disorder by the Plateau Mental Health
Center, and received counseling and prescriptions for certain medications, but discontinued
treatment at that facility in March, 2011, because his care providers there did not help him by
giving him the Xanax he requested. (Id., at 261-271, 363-371). In February, 2012, the Plaintiff
sought treatment from the Personal Growth and Learning Center where he also received
counseling and prescriptions for medications. (Id, at 50-55, 406-461, 607-615).4 Although the
Plaintiff points to many of the statements made by him during these treatment sessions as
evidence of the severity of his condition, he does not cite a physician’s opinion of his condition
in these records that undermines the ALJ’s assessment of Dr. Bilbrey’s opinion.
The ALJ’s assessment of Dr. Bilbrey’s opinion is supported by substantial evidence. The
ALJ appropriately determined that the opinion was entitled to less weight because it was
internally inconsistent. See Bowman v. Comm'r of Soc. Sec., 2017 WL 1065553, at *6 (6th Cir.
Mar. 21, 2017)(Opinion entitled to less weight because GAF score and examination narratives
were inconsistent). Dr. Bilbrey also opined that the Plaintiff had only “slight” or “moderate”
limitations in 21 of 25 separate areas, which is largely consistent with the ALJ’s conclusion that
Plaintiff’s mental impairments were non-severe. (AR, at 563-564).
The court notes that the Plaintiff has not cited to any treatment records supporting his
hearing testimony that he had cut himself.
The Plaintiff also argues that the opinion of Dr. Burger should have been given little
weight because it was rendered without the benefit of Plaintiff’s subsequent treatment records. A
review of the subsequent treatment records, however, does not indicate that the Plaintiff’s
condition worsened to any appreciable degree. (Id., at 50-55, 409-461, 424-431,576-599, 607615). For example, the Plaintiff’s GAF scores reflected in those records ranged from 45 to 56.
(Id.)5 The ALJ’s determination that the Plaintiff’s medical impairment was non-severe is
supported by substantial evidence.
4. Error in failing to call a vocational expert
Finally, the Plaintiff argues that the ALJ erred in failing to call a vocational expert (“VE”)
to testify at the hearing as to the effect his non-exertional impairments of pain and mental
condition had on his ability to perform a full range of sedentary work. As set forth above, the
ALJ concluded that the Plaintiff had the residual functional capacity to perform the full range of
sedentary work, and that his allegations of pain and psychological restrictions did not impose any
limitations beyond that defined category. (AR, at 70-74). As a result, the ALJ explained that the
applicable regulations provide that the Plaintiff is not disabled because there are jobs that exist in
significant numbers in the national economy that the Plaintiff can perform, considering his age,
education, work experience, and RFC. (Id., at 74 (“Based on a residual functional capacity for the
full range of sedentary work, considering the claimant’s age, education, and work experience, a
finding of ‘not disabled’ is directed by Medical-Vocational Rule 201.19.”)). See 20 C.F.R. §§
See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007)(“Even assuming
GAF scores are determinative, the record supports a GAF in the high 40s to mid 50s, which
would not preclude her from having the mental capacity to hold at least some jobs in the national
416.969, 416.969a. The ALJ’s finding that the Plaintiff had no non-exertional limitations as part
of his RFC was supported by substantial evidence, and therefore, the testimony of a VE was
unnecessary. See, e.g., Collins v. Comm'r of Soc. Sec., 357 F. App'x 663, 670–71 (6th Cir. 2009).
Thus, the ALJ did not err in failing to call a VE to testify at the hearing.
In sum, the
Court concludes that the decision of the Social Security Administration is supported by
substantial evidence on the record as a whole, and should be affirmed.
For the reasons set forth herein, the Plaintiff’s Motion For Judgment On The
Administrative Record (Docket No. 15) is denied.
It is so ORDERED.
Enter this 13th day of June 2017.
ALETA A. TRAUGER
U.S. District Judge
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