Selby v. Social Security Administration et al
Filing
19
REPORT AND RECOMMENDATION re 16 MOTION for Judgment on the Record. The undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED. Signed by Magistrate Judge Jeffery S. Frensley on 2/9/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
RONNIE SELBY,
)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security, )
)
Defendant.
)
Civil Action No. 2:14-cv-00094
Judge Sharp/Frensley
REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain
judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff
was not disabled and denying Plaintiff Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”), as provided under the Social Security Act (“the Act”), as amended.
The case is currently pending on Plaintiff’s Motion for Judgment on the Administrative Record.
Docket No. 16. Plaintiff has filed an accompanying Memorandum. Docket No. 17. Defendant
has filed a Response, arguing that the decision of the Commissioner was supported by substantial
evidence and should be affirmed. Docket No. 18.
For the reasons stated below, the undersigned recommends that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner
be AFFIRMED.
I. INTRODUCTION
Plaintiff filed his applications for DIB and SSI on July 8, 2011, with a protective filing
date of June 27, 2011, alleging that he had been disabled since January 29, 1996, due to back
injury with nerve damage, lung problems, and Hepatitis C. Docket No. 12, Attachment (“TR”),
TR 87-90, 156, 163, 192. Plaintiff later amended his alleged onset date to December 4, 2008.
TR 255. Plaintiff’s applications were denied both initially (TR 87, 88) and upon reconsideration
(TR 89, 90). Plaintiff subsequently requested (TR 108) and received (TR 57-86) a hearing.
Plaintiff’s hearing was conducted on June 11, 2013, by Administrative Law Judge (“ALJ”) Mark
Siegel. TR 57. Plaintiff and vocational expert (“VE”), Ernest Brewer, appeared and testified.
Id.
On July 19, 2013, the ALJ issued a decision unfavorable to Plaintiff, finding that Plaintiff
was not disabled within the meaning of the Social Security Act and Regulations. TR 34-36.
Specifically, the ALJ made the following findings of fact:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity
since December 4, 2008, the amended alleged onset date (20
CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: lumbar
degenerative disc disease; hypertension; chronic obstructive
pulmonary disease; borderline intellectual functioning; learning
disorder; depressive disorder; post-traumatic stress disorder;
alcohol dependence; and generalized anxiety disorder (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 light work as defined in 20 CFR
2
404.1567(b) and 416.967(b), except the claimant can only
occasionally perform such postural activities as climbing,
balancing, stooping, crouching, crawling and kneeling. The
claimant should not have concentrated exposure to pulmonary
irritants. The claimant can understand, remember, and carry
out simple and 1 to 3 step detailed instructions, but he is better
suited working in an object-focused setting with things rather
than people. The claimant reads at a fifth grade level and
performs math at a fourth grade level.
6. The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
7. The claimant was born on December 27, 1967 and was 40
years old, which is defined as a younger individual age 18-49,
on the amended alleged disability onset date of December 4,
2008 (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job
skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
10. 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 404.1569, 404.1569(a), 416.969, and
416.969(a)).
11. The claimant has not been under a disability, as defined in the
Social Security Act, from January 29, 1996, through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).
TR 39-50 (emphasis in original).
3
On August 2, 2013, Plaintiff timely filed a request for review of the hearing decision. TR
33. On September 9, 2014, the Appeals Council issued a letter declining to review the case (TR
1-6), thereby rendering the decision of the ALJ the final decision of the Commissioner. This
civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the
Commissioner’s findings are supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of record. Accordingly, the Court will discuss those matters only to the
extent necessary to analyze the parties’ arguments.
III. CONCLUSIONS OF LAW
A. Standards of Review
This Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Sec’y of Health & Human Servs., 945 F.2d 1365, 1369
(6th Cir. 1991). The purpose of this review is to determine: (1) whether substantial evidence
exists in the record to support the Commissioner’s decision, and (2) whether any legal errors
were committed in the process of reaching that decision. Landsaw v. Sec’y of Health & Human
Servs., 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept
as adequate to support the conclusion.” Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389 (6th Cir.
1999), citing Richardson v. Perales, 402 U.S. 389, 401 (1971). “Substantial evidence” has been
further quantified as “more than a mere scintilla of evidence, but less than a preponderance.”
4
Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996), citing Consol. Edison Co. v.
N.L.R.B., 305 U.S. 197, 229 (1938).
The reviewing court does not substitute its findings of fact for those of the Commissioner
if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different
conclusion, the decision of the ALJ must stand if substantial evidence supports the conclusion
reached. Her, 203 F.3d at 389, citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). If the
Commissioner did not consider the record as a whole, however, the Commissioner’s conclusion
is undermined. Hurst v. Sec’y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985),
citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).
In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff’s condition; (2) diagnoses and opinions of
medical experts; (3) subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
B. Proceedings at the Administrative Level
The claimant carries the ultimate burden to establish an entitlement to benefits by proving
his or her “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful activity” not
only includes previous work performed by Plaintiff, but also, considering Plaintiff’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
5
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process summarized as follows:
(1) If the claimant is working and the work constitutes
substantial gainful activity, benefits are automatically
denied.
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a “severe”
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment,
it must be determined whether he or she suffers from one of
the “listed” impairments or its equivalent. 1 If a listing is
met or equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level
impairments, it must be determined whether the claimant
can return to the job he or she previously held in light of his
or her residual functional capacity (e.g., what the claimant
can still do despite his or her limitations). By showing a
medical condition that prevents him or her from returning
to such past relevant work, the claimant establishes a prima
facie case of disability.
(5) The burden then shifts to the Commissioner to establish the
claimant’s ability to work by proving the existence of a
significant number of jobs in the national economy which
the claimant could perform, given his or her age,
experience, and residual functional capacity.
See, e.g., 20 CFR §§ 404.1520, 416.920; see also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th
Cir. 1990).
1
The Listing of Impairments is found at 20 CFR § 404, Subpt. P, App. 1.
6
The Commissioner’s burden at the fifth step of the evaluation process can be satisfied by
relying on the medical-vocational guidelines, otherwise known as “the grid,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule. Moon,
923 F.2d at 1181; 20 CFR § 404, Subpt. P, App. 2, Rule 200.00(e)(1), (2). See also Damron v.
Sec’y of Health & Human Servs., 778 F.2d 279, 281-82 (6th Cir. 1985). Otherwise, the grid
cannot be used to direct a conclusion, but only as a guide to the disability determination. Id. In
such cases where the grid does not direct a conclusion as to the claimant’s disability, the
Commissioner must rebut the claimant’s prima facie case by coming forward with particularized
proof of the claimant’s individual vocational qualifications to perform specific jobs, which is
typically obtained through vocational expert testimony. See Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity for purposes of the analysis required at stages
four and five above, the Commissioner 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).
C. Plaintiff’s Statement of Errors
Plaintiff contends that the ALJ erred by: (1) failing to properly consider and weigh the
opinion evidence; (2) finding that Plaintiff’s statements concerning the intensity, persistence and
limiting effects of his symptoms were not entirely credible, specifically failing to appropriately
address Plaintiff’s complaints of pain and mental restrictions; (3) improperly determining that
Plaintiff has the residual functional capacity to perform light work, disregarding the limiting
effects of Plaintiff’s pain and the Global Assessment of Functioning (“GAF”) scores assigned by
7
Plaintiff’s mental health care provider. Docket No. 17, p. 17-22. Accordingly, Plaintiff has
moved the Court for a judgment based upon the administrative record. Docket No. 16. 2
Sentence four of § 405(g) states as follows:
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 Secretary’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 plaintiff’s entitlement to benefits. Faucher v. Sec’y of Health & Human
Servs., 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir.
1994).
1. The ALJ’s Consideration of the Opinion Evidence
Plaintiff maintains that the ALJ did not properly consider and weigh the opinion evidence
in this matter. Docket No. 17, p. 19-20. Plaintiff specifically argues that the ALJ did not
properly evaluate the opinion of his treating mental health care provider, Holly Robertson,
APRN-BC. Id. at 19. Plaintiff argues that:
2
Although neither Plaintiff’s Motion nor his Memorandum requests that the Commissioner’s
decision be reversed, or in the alternative, remanded (see Docket Nos. 16, 17), those are the only
forms of relief available in the instant action to Plaintiff. See 42 U.S.C. §§ 405(g), 1383(c)(3).
The undersigned will therefore consider Plaintiff’s Motion to be requesting such relief.
8
The ALJ tries to diminish the significance of two years of
treatment by Holly Robertson at Life Care because there is a
reference to a referral to Life Care by claimant’s attorney. The
ALJ fails to note that Holly Robertson was the provider who
changed facilities. The ALJ seems to only credit Holly
Robertson’s work at PMHC and not Life Care and also the ALJ
indicates that [Plaintiff] returned to PMHC just a month before
the hearing. (Tr. 8). The last records from Life Care are
mistakenly identified in the index of the record as records from
Volunteer Behavioral Health Care Systems. (Tr. 636-647). In
fact, [Plaintiff] had consistent treatment from Holly Robertson
during the period in review, from 2009 through 2010 and 2011
through 2013.
Id.
Plaintiff further argues that the ALJ should have given more consideration and weight to
the opinion of consultative examiner Melvin Blevins, M.D., who “found significant restrictions
that will not allow even a full range of sedentary work.” Id. at 20. Plaintiff contends that the
ALJ should have given less weight to the opinion of consultative examiner Donita Keown, M.D.,
because “Dr. Keown’s opinion of [Plaintiff’s] restrictions was given without the benefit of the xrays of September 13, 2011, showing severe disc disease,” and “neither the consultative doctor
nor the reviewing doctor had the benefit of the records of [Plaintiff’s] hypertension and his
treatment for pain in 2012.” Id.
Defendant responds that “the ALJ properly considered all of the relevant medical opinion
evidence pertaining to Plaintiff’s mental health.” Docket No. 18, p. 9, citing TR 41, 42, 44-45,
48-49. Regarding the opinion of Nurse Robertson, Defendant argues that she is an “other” or
“not acceptable” source under the Regulations, and therefore cannot offer a “medical opinion.”
Id. at 10-11. Defendant contends that the ALJ summarized Plaintiff’s treatment and specifically
noted the treatment at Life Care in 2009 and 2011 through 2013, and thus was familiar with
Plaintiff’s treatment history with Nurse Robertson. Id. at 12, citing TR 44.
9
Regarding other opinion evidence related to Plaintiff’s mental health, Defendant argues
that the ALJ properly considered and weighed the opinions of consultative examiner Dr. Linda
Blazina and State agency non-examining psychologist Robert Paul, Ph.D. Id. at 14, 15, citing
TR 48, 292-309.
With regard to the evaluation of medical evidence, the Code of Federal Regulations
states:
Regardless of its source, we will evaluate every medical
opinion we receive. Unless we give a treating source’s opinion
controlling weight under paragraph (c)(2) of this section, we
consider all of the following factors in deciding the weight we
give to any medical opinion.
(1) Examining relationship. Generally, we give more
weight to the opinion of a source who has examined
you than to the opinion of a source who has not
examined you.
(2) Treatment relationship. Generally, we give more
weight to opinions from your treating sources, since
these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of
your medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or
from reports of individual examinations, such as
consultative examinations or brief hospitalizations. If
we find that a treating source’s opinion on the issue(s)
of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in your case record,
we will give it controlling weight. When we do not
give the treating source’s opinion controlling weight,
we apply the factors listed in paragraphs (c)(2)(i) and
(c)(2)(ii) of this section, as well as the factors in
paragraphs (c)(3) through (c)(6) of this section in
determining the weight to give the opinion . . . .
10
(3) Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight
we will give that opinion. The better an explanation a
source provides for an opinion, the more weight we will
give that opinion . . . .
(4) Consistency. Generally, the more consistent an opinion
is with the record as a whole, the more weight we will
give to that opinion.
(5) Specialization. We generally give more weight to the
opinion of a specialist about medical issues related to
his or her area of specialty than to the opinion of a
source who is not a specialist.
...
20 CFR § 416.927(c) (emphasis added). See also 20 CFR § 404.1527(c).
The ALJ must articulate the reasons underlying his decision to give a medical opinion a
specific amount of weight. 3 See, e.g., 20 CFR § 404.1527(d); Allen v. Comm’r of Soc. Sec., 561
F.3d 646 (6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The
reasons must be supported by the evidence and must be sufficiently specific so as to make clear
to any subsequent reviewers the weight the ALJ gave to the treating source medical opinion and
the reasons for that weight. SSR 96-2p.
The Sixth Circuit has held that, “[p]rovided that they are based on sufficient medical data,
the medical opinions and diagnoses of treating physicians are generally accorded substantial
3
There are circumstances when an ALJ’s failure to articulate good reasons for the weight
accorded to medical opinions may constitute harmless error: (1) if a treating source opinion is so
patently deficient that the ALJ could not possibly credit it; (2) if the ALJ adopts the opinion or
makes findings consistent with the opinion; and/or (3) if the ALJ has complied with the goal of
20 CFR § 1527(d), by analyzing the physician’s contradictory opinions or by analyzing other
opinions of record. See, e.g., Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir.
2010); Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 470-72 (6th Cir. 2006); Hall v.
Comm’r of Soc. Sec., 148 F. App’x 456, 464 (6th Cir. 2006).
11
deference, and if the opinions are uncontradicted, complete deference.” Howard v. Comm’r of
Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002), quoting Harris v. Heckler, 756 F.2d 431, 435 (6th
Cir. 1985). If the ALJ rejects the opinion of a treating source, however, he is required to
articulate some basis for rejecting the opinion. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir.
1987). The Code of Federal Regulations defines a “treating source” as:
[Y]our own physician, psychologist, or other acceptable
medical source who provides you or has provided you, with
medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with you.
20 CFR § 404.1502.
The ALJ in the instant action discussed the opinion evidence and weight accorded thereto
as follows:
The claimant had a private consultative psychological
examination in October 2012 with Jerell Killian, MS (Exhibit
17F). The claimant’s representative requested this intellectual
functioning because of the claimant’s history of special
education and limited education. On the WAIS-IV test, the
claimant obtained a Full Scale IQ score of 69, which is within
the range of listing 12.05C. The examiner noted the claimant’s
testing scores on this and the WRAT-4 revealed a range of
functioning with most scores in the borderline range. The
claimant also stated it took him five tries to obtain a
commercial driving license. The examiner was not able to
determine why activities involving processing speed were so
difficult for the claimant. Mr. Killian’s diagnostic impression
was mild mental retardation. 4
4
Mr. Killian is not an acceptable medical source under 20 CFR 404.1513(a) and 416.913a.
Under Social Security Ruling 06-03p, information from sources other than acceptable medical
sources cannot establish the existence of a medically determinable impairment. However,
information from such “other sources” may be based on special knowledge of the individual and
may provide insight into the severity of the impairment and how it affects the individual’s ability
to function. Mr. Killian has no such special knowledge of the claimant, as he only conducted a
one-time examination.
12
...
In terms of anxiety and depression, the claimant received some
mental health treatment at Plateau in 2009 and on January 2,
2010. After no treatment for over three years, he resumed
treatment there on May 13, 2013, a month before his hearing
(Exhibit 25F and 26F). The claimant received some treatment
at Life Care Family Services, beginning in 2011 after he filed
his application on the reference of his disability representative
(Exhibit 10F and 1F). He has reported he has a lifetime history
of anxiety, although he spent his most recent two year [sic]
working as a blaster. He takes prescription medication such as
Zoloft.
The claimant attended a consultative physical exam with Dr.
Donita Keown, MD on September 13, 2011 (Exhibit 2F). The
claimant complained of back injury, lung problems, and
hepatitis C. The claimant reported that he had back surgery in
the mid-1990s. At the examination, he carried a cane, but did
not use it. He said he had used a cane since his surgery in the
mid-90s, yet he also admitted he worked in drilling and
blasting up until three years ago, which is not fully credible.
The claimant would not answer more questions about his cane,
and changed the topic when the examiner asked. When the
examiner asked about his lung problem, the claimant began
coughing dramatically. He stated he was short-winded “all the
time”. He stated he was told he has the lungs of an 80-year
old. However, he still smokes a pack per day. He reported he
suffered hepatitis C since two years prior, but he had not
received treatment for hepatitis C because he had “no money”.
He complained of occasional right quadrant pain, but he had
had no hospitalizations. The claimant could not remember the
last time he had been treated by any treating physicians. He
reported occasional alcohol consumption. He reported working
in drilling and blasting for 15 years, ending in November 2008.
Upon examination, the consultative physician Dr. Keown noted
the claimant presented with pain behaviors and symptom
magnification. Moreover, the claimant presented with
suboptimal participation in the collection of information for the
medical history. In lungs, he had no wheeze, rales or rhonchi;
he had no increased AP diameter or use of accessory muscles
to respire. His heart showed regular rhythm and rate with
normal S1 and S1 without S3 or S4; he had no murmurs, rubs
or gallops. Pulses were +2 in all four limbs with no edema.
13
He did not have hepatosplenomegaly or ascites. He had full
range of motion in his hands, wrists, elbows, shoulders, hips,
knees and ankles. He showed full range of motion in his
cervical spine. He had a faded incision scar in lumbar spine.
He showed some range of motion issues in thoracolumbar
spine, yet straight leg raise maneuvers were negative both
seated and supine. He showed 5/5 strength in his hands, arms,
and legs. He could perform a straightaway walk unremarkably
without using an assistive device. The claimant was never
inordinately short of air at any time during the evaluation. An
x-ray of chest was normal. X-rays of lumbar spine showed
degenerative disc disease at L5-S1; there are mild degenerative
changes involving remainder of the spine.
As noted above, the claimant attended a consultative physical
examination with Dr. Melvin Blevins, MD in June 2012 upon
the advice and counsel of the claimant’s disability
representative. The claimant’s representative arranged the
examination (Exhibit 12F). Dr. Blevins noted the claimant’s
degenerative disc disease since a back injury in 1996 and the
claimant’s other impairments. The examiner found decreased
breath sounds and scattered rhonchi. Straight leg raise was
positive at 30 degrees on left and negative on right. Grip was
4/4 bilaterally; upper extremity reflexes are 4/4 bilaterally. The
claimant presented with a limp. Based on what the claimant
told him, Dr. Blevins felt the claimant suffered ASHD
(arteriosclerotic heart disease); it was Dr. Blevins’ primary
diagnosis; yet, as discussed above, the medical evidence of
record does not support this.
The claimant attended a psychological consultative
examination with Dr. Linda Blazina, PhD, in September 2011
(Exhibit 3F). At the examination, the claimant alleged
disability based on “back, lungs and anxiety”. He was alert
and cooperative with good eye contact. He demonstrated mild
psychomotor restlessness. His mood was depressed and his
affect congruent. Speech was slow but fluent. Receptive and
expressive language skills were within normal range. He
rambled at times, but there was no evidence he has any
impairment in reality testing. He denied suicide or homicide
ideation. He stated he had felt anxious since childhood. His
memory functioning appeared adequate. His attention and
concentration were below average. He was very vague about
substance dependence problems until he finally stated, “I am a
binge drinker and drink every two or three months now.” He
14
reported receiving mental health treatment two years prior at
Plateau. The examiner felt the claimant had intellectual
functioning in the borderline to low range. He was not taking
any medication at the time of the exam. He said he sometimes
had problems putting on shoes and socks due to back pain, but
he could complete all other grooming tasks. He said he did not
drive because he was too nervous. He did not like to go out in
public. He did not do any chores or cooking; his wife did
these. He watched television and talked with his brother on the
telephone occasionally. The examiner diagnosed generalized
anxiety disorder; depressive disorder, NOS; learning disorder,
NOS; and alcohol dependence. The examiner had rule out
diagnoses of borderline intellectual functioning and personality
disorder.
...
As for the opinion evidence, the undersigned gives most weight
to the opinions from state agency medical consultants. The
undersigned gives some weight to opinions from consultative
examiners. The overall well-supported medical opinion
evidence supports the residual functional capacity.
Dr. Keown, a consultative physician in September 2011, found
the claimant could sit 8 hours in an 8-hour day (2F). He could
walk or stand 8 hours in an 8-hour day. He could perform
lifting 30-40 pounds occasionally and 15-20 pounds frequently.
There was no evidence to support reliance on a handheld
device (cane) at all times. The undersigned gives this opinion
some weight because this physician examined the claimant
personally. In this case, however, the ability of the State
agency physician to examine the entire file actually resulted in
a more restrictive functional capacity than Dr. Keown
recommended.
Dr. Blevins, MD, a consultative physician who examined the
claimant at the behest of the claimant’s representative, found
the claimant suffers very serious limitations (Exhibit 12F). He
could lift and carry 20 pounds occasionally and less than 10
pounds frequently. He could stand and walk less than 2 hours
in an 8-hour workday and sit about 4 hours in an 8-hour
workday. He was limited in use of his legs due to pain. His
pain was frequently severe; he was incapable of even low stress
jobs. This doctor further found the claimant’s legs should be
raised after prolonged sitting. The claimant can occasionally
15
climb and balance; he can never kneel, crouch or crawl. He
should avoid moderate exposure to pulmonary irritants,
temperature extremes, noise, vibration, and hazards. The
undersigned gives little weight to this opinion because this
doctor bases his conclusions solely on the claimant’s subjective
reports, and these reports have been found not to be fully
credible, for the reasons discussed above.
Dr. Blazina, PhD, a consultative psychologist (3F) in
September 2011 found the claimant did not have impairment in
ability to understand and remember short simple instructions.
His ability to understand and remember complex detailed
instructions was moderately impaired. Ability to maintain
concentration and attention and social interaction ability
appeared moderately impaired. Ability to adapt to change in a
work routine and tolerate workplace stress was moderately
impaired. The undersigned gives this opinion some weight
because this psychologist interviewed the claimant personally.
The residual functional capacity accommodates these
limitations.
Medical staff at Volunteer Behavioral assessed the claimant’s
functioning in a form assessment in April 2009 (Exhibit 25F).
The assessment shows moderate limitation in most areas, with
marked limitation in social functioning. The undersigned gives
this opinion less weight for several reasons. First, the form
was completed two years before the claimant filed his
application, and the overall record shows the claimant’s
condition improved with time. His mental condition seemed to
improve as shown by notes in 2011 and 2012 at Life Care. He
received a Global Assessment of Functioning of 45 in 2009,
but a GAF of 50 and 55-60 in 2011. Moreover, the record is
unclear as to the professional status of the individual who
completed this form, and the form does not provide substantial
objective information to support its conclusions.
Dr. Chaudhuri, MD, a state agency physician, found the
claimant could occasionally lift and carry 20 pounds and
frequently lift and carry 10 pounds (Exhibit 4F). The claimant
could stand and walk about six hours in an 8-hour workday and
sit about 6 hours in an 8-hour workday. The claimant can
occasionally climb, balance, stoop, crouch, kneel and crawl.
The claimant should avoid concentrated exposure to pulmonary
irritants such as fumes, odors, gases, dust, poor ventilation, etc.
The undersigned gives this opinion considerable weight
16
because it is consistent with the record as a whole. The state
agency source noted the claimant did not have shortness of
breath problems during the physical consultative exam. He
exhibited pain behaviors and symptoms magnification.
Dr. Robert Paul, PhD, a state agency psychologist, found the
claimant can understand and remember for [sic] simple and
some detailed 1to 3 [sic] step tasks and instructions (Exhibit 6F
and 5F). The claimant can sustain adequate persistence and
pace across normal workday and workweek. The claimant can
get along with the general public, coworkers and supervisors;
however, he appears better suited for thing versus peopleoriented type work in object-focused job setting [sic].
Claimant can adapt and respond to changes in a routine work
setting given reasonable support. The claimant can make and
set simple work-related plans and goals independently, but he
may have difficulty with more complex decision-making. The
undersigned gives this opinion considerable weight because it
is consistent with the record as a whole. For instance, this
consultant noted the claimant had not had mental health care in
the past two years (Exhibit 3F). There were [sic] no mention
of mental impairments in the claimant’s original disability
report.
Due to the inability to find the claimant’s allegations to be fully
credible, the undersigned must rely on the state agency
assessments at 4F and 6F, which are more consistent with the
record as a whole and which are given considerable weight.
Moreover, at reconsideration, state agency consultants
concurred with these assessments (Exhibits 8F and 9F). These
opinions receive some weight insofar as they support the
residual functional capacity because these consultants are
experts in the field of disability.
TR 41, 44-49, citing TR 265-309, 337-61, 378-85, 410-12, 514-542 (emphasis in the original,
footnote in the original).
Although Nurse Robertson had a treatment relationship with Plaintiff that should be
considered by the ALJ, under the Regulations, she is not an acceptable source who can provide a
medical opinion. See 20 CFR § 404.1513(d). Regarding “other” sources, the Regulations
provide that the ALJ may properly:
17
use evidence from other sources to show the severity of your
impairment(s) and how it affects your ability to work. Other
sources include, but are not limited to –
(1) Medical Sources not listed in paragraph (a) of this
section (for example, nurse-practitioners, physicians’
assistants, naturopaths, chiropractors, audiologists, and
therapists).
Id. While the ALJ does not refer to Nurse Robertson by name, her notes are contained within the
records from Life Care that are cited by the ALJ in his decision. TR 48. Although Plaintiff
argues that “[t]he last records from Life Care are mistakenly identified in the index of the record
as records from Volunteer Behavioral Health Systems. (Tr. 636-647)” (Docket No. 17, p. 19),
those page numbers are actually identified in the index as “Medical Evidence of Record, dated
05/13/2013 to 06/12/2013, from Life Care Family Services.” See TR, Court Transcript Index.
Regardless, the ALJ demonstrated his familiarity with the records from Life Care by citing to
Exhibits 25F and 26F, as described above, and by acknowledging that Plaintiff resumed
treatment on May 13, 2013, a reference to Plaintiff’s treatment at Life Care, beginning on May
13, 2013, that is documented in the record within the range of pages that Plaintiff cites in his
argument. See, e.g., TR 638. Further, Plaintiff’s argument that the ALJ failed to appropriately
consider Plaintiff’s treatment at Life Care because the ALJ believed that Plaintiff “received some
treatment at Life Care Family Services . . . on the reference of his disability representative” is not
persuasive, because, as cited above, the ALJ did consider and discuss Plaintiff’s treatment at Life
Care. As cited above, the ALJ considered not only the opinions related to Plaintiff’s treatment at
Life Care, but every opinion included in Plaintiff’s record.
Because Nurse Robertson is an “other source,” the ALJ was not required to give her
opinion any particular weight. As shown above, the ALJ properly considered Nurse Robertson’s
18
notes, including those notes from her treatment of Plaintiff at Life Care, when evaluating the
record and making his determinations, and the Regulations do not require more.
2. Credibility and Subjective Complaints
Plaintiff contends that in finding that his subjective complaints were not fully credible,
the ALJ did not appropriately address his complaints “of both pain and of [Plaintiff’s] mental
restrictions.” Docket No. 17, p. 18. Plaintiff argues that instead of properly considering his
limitations, the ALJ merely stated that he had considered Plaintiff’s subjective limitations in
accordance with the Regulations and then listed the factors for evaluating symptoms that are set
out in the Regulations, in violation of SSR 96-7p. Id. at 17-18. Plaintiff further argues that the
ALJ discredited Plaintiff’s testimony without a close reading of the record. Id.
Defendant responds that the ALJ’s evaluation of Plaintiff’s credibility was consistent
with the SSA’s regulations and policies and is supported by substantial evidence. Docket No.
18, p. 4. In response to Plaintiff’s argument that the ALJ made conclusory statements with no
analysis, Defendant argues that the ALJ discussed and based his finding on multiple factors,
including Plaintiff’s “inconsistent testimony and statements, exaggerations, symptom
magnifications at a consultative examination, continuing smoking despite alleging breathing
problems, and the lack of support in the medical record.” Id. at 5, citing TR 46-47. Specifically,
Defendant points to the ALJ’s consideration of Plaintiff’s inconsistent use of a cane, continued
smoking, “inconsistencies in Plaintiff’s description of his use of alcohol and marijuana,”
inconsistent reports of symptoms, and work as a blaster despite allegations of anxiety and posttraumatic stress. Id. at 7-8.
The Sixth Circuit has set forth the following criteria for assessing a plaintiff’s subjective
allegations, including pain:
19
[S]ubjective allegations of disabling symptoms, including pain, cannot
alone support a finding of disability . . . . [T]here must be evidence of an
underlying medical condition and (1) there must be objective medical
evidence to confirm the severity of the alleged pain arising from the
condition or (2) the objectively determined medical condition must be of a
severity which can reasonably be expected to give rise to the alleged pain.
Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 852-53 (6th Cir. 1986), quoting S.
Rep. No. 466, 98th Cong., 2d Sess. 24 (emphasis added); see also 20 CFR §§ 404.1529, 416.929
(“statements about your pain or other symptoms will not alone establish that you are disabled . . .
.”); Moon v. Sullivan, 923 F.2d 1175, 1182-83 (6th Cir. 1990) (“though Moon alleges fully
disabling and debilitating symptomatology, the ALJ may distrust a claimant’s allegations . . . if
the subjective allegations, the ALJ’s personal observations, and the objective medical evidence
contradict each other.”). Moreover, “[a]llegations of pain . . . do not constitute a disability,
unless the pain is of such a debilitating degree that it prevents an individual from participating in
substantial gainful employment.” Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224,
1227 (6th Cir. 1988).
When analyzing the claimant’s subjective complaints of pain, the ALJ must also consider
the following factors and how they relate to the medical and other evidence in the record: the
claimant’s daily activities; the location, duration, frequency, and intensity of claimant’s pain; the
precipitating and aggravating factors; the type, dosage, and effect of medication; and the other
treatment or measures to relieve pain. See Felisky v. Bowen, 35 F.3d 1027, 1039 (6th Cir. 1994),
construing 20 CFR § 404.1529(c)(2). After evaluating these factors in conjunction with the
evidence in the record, and by making personal observations of the claimant at the hearing, an
ALJ may determine that a claimant’s subjective complaints of pain and other disabling
symptoms are not credible. See, e.g., Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th
20
Cir. 1997); Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 230 (6th Cir. 1990); and
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981).
The ALJ in the case at bar ultimately found that:
After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.
TR 46.
The ALJ explained his rationale for so finding as follows:
Because a claimant’s subjective complaints of impairment-related
symptoms can sometimes suggest a different level of severity than
can be shown by the objective medical evidence alone, 20 CFR
§404.1529(c) and §416.929(c) describe the kinds of evidence the
undersigned must consider, in addition to the objective medical
evidence when assessing the credibility of the claimant’s
statements. These credibility factors include: (1) the claimant’s
daily activities; (2) the location, duration, frequency and intensity
of the claimant’s pain or other symptoms; (3) the factors that
precipitate and aggravate the symptoms; (4) the type, dosage,
effectiveness, and side effects of any medication the claimant takes
or has taken to alleviate pain or other symptoms; (5) treatment,
other than medication, the claimant receives or has received for
relief of pain or other symptoms; (6) any measures other than
treatment the claimant uses or has used to relieve pain or other
symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board) and (7) any other
factors concerning the claimant’s functional limitations and
restrictions due to pain or other symptoms (SSR 96-7p). In sum,
the claimant’s subjective allegations of completely disabling
symptoms do not find complete support when considering these
credibility factors.
The claimant’s subjective allegations are not entirely credible. The
claimant states he has suffered back pain since 90’s [sic] and he
has been anxious since childhood (3F). However, the claimant has
worked at substantial levels since the onset of these issues. His
work required both exertional and skill levels which would call his
21
subjection [sic] allegations into question. It is particularly unlikely
that someone with disabling anxiety could work for two years as a
dynamite blaster.
The claimant stated at the examination with Dr. Keown that he is
short-winded “all the time” (Exhibit 2F). This statement was not
verified by objective observation by Dr. Keown at the examination
or by the undersigned at the claimant’s hearing. Second, this
statement is vague and extreme, suggesting symptoms
magnification. Moreover, the claimant continues to smoke about
one pack of cigarettes per day, despite this alleged breathing
difficulty. At one point he stated he has “no money” for hepatitis
C treatment, yet he could afford one pack of cigarettes per day at
that same time, which suggests that his desire for cigarettes is more
important than his breathing problems or hepatitis symptoms.
The claimant ambulated with a limp at psychological consultative
exam [sic], but this is not consistent with the consultative physical
examination, from which Dr. Keown reported he could walk fine
without a cane (Exhibits 2F and 3F). In addition, Dr. Keown
stated that the claimant engaged in pain behaviors and symptoms
magnification.
The claimant testified at the hearing that he had not used alcohol in
the past five years. At a consultative examination in September
2011, however, he reported drinking alcohol occasionally at that
time, then admitted to binge drinking (2F). Moreover, at the
physical examination, he stated he did not do drugs. Yet at the
hearing, he had used marijuana in the past eight months. The
record shows he rarely or never discusses drugs or alcohol with his
mental health providers, which limits their ability to evaluate his
condition fully.
As noted above, the undersigned does not believe that an
individual with the kind of anxiety and post-traumatic stress
disorder that the claimant alleges would be able to work as a
successful blaster for two years. His stories of sending debris
multiple times through a McDonald’s restaurant during business
hours and through people’s homes are also not fully credible. One
such event would likely have made the regional or national news.
Moreover, the claimant has no medical records since the 1990’s
until six months after he stopped working. Also, as noted above,
the claimant’s reports of heart problems and seizures are not
supported by the record.
22
TR 46-47, citing TR 270-81 (emphasis in original).
As can be seen, the ALJ’s decision specifically addresses not only the medical evidence,
but also Plaintiff’s testimony and his subjective claims, clearly indicating that these factors were
considered. TR 46-49. As cited above, the ALJ thoroughly considered and discussed the
opinion evidence, including Plaintiff’s evaluations for pain and mental impairments. TR 41, 4549. Although the ALJ did indeed list the factors that the Regulations specify for the evaluation
of a claimant’s subjective allegations, the ALJ did not merely list the factors without providing
analysis. TR 46. Instead, the ALJ continued by explaining why he found Plaintiff’s statements
to be not entirely credible, with particularity and reference to the record. Id. The ALJ’s
articulated rationale demonstrates that, although there is evidence which could support Plaintiff’s
claims, the ALJ chose to rely on evidence that was inconsistent with Plaintiff’s allegations. This
is within the ALJ’s province.
The ALJ, when evaluating the entirety of the evidence, is entitled to weigh the objective
medical evidence against Plaintiff’s subjective claims and reach a credibility determination. See,
e.g., Walters, 127 F.3d at 531; Kirk, 667 F.2d at 538. An ALJ’s findings regarding a claimant’s
credibility are to be accorded great weight and deference, particularly because the ALJ is
charged with the duty of observing the claimant’s demeanor and credibility. Walters, 127 F.3d at
531, citing Villarreal v. Sec’y of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987).
Discounting credibility is appropriate when the ALJ finds contradictions among the medical
reports, the claimant’s testimony, the claimant’s daily activities, and other evidence. See
Walters, 127 F.3d at 531, citing Bradley, 862 F.2d at 1227; cf King v. Heckler, 742 F.2d 968,
974-75 (6th Cir. 1984); and Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 921 (6th
23
Cir. 1987). If the ALJ rejects a claimant’s testimony as not credible, however, the ALJ must
clearly state the reasons for discounting a claimant’s testimony and the reasons must be
supported by the record. See Felisky, 35 F.3d at 1036; see King, 742 F.2d at 975).
As discussed above, after assessing all of the medical and testimonial evidence, the ALJ
ultimately determined that “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for the reasons explained in this
decision.” TR 46. In making this determination, the ALJ observed Plaintiff during his hearing,
assessed the medical records, and reached a reasoned decision; the ALJ’s findings are supported
by substantial evidence and the decision not to accord full credibility to Plaintiff’s allegations
was proper. Therefore, this claim fails.
3. Residual Functional Capacity (“RFC”), Limiting Effects of Pain, and GAF Scores
Plaintiff maintains that the ALJ erred in finding that Plaintiff can perform light work, in
finding that Plaintiff’s pain is not significantly limiting, and in failing to appropriately consider
the GAF scores assigned by Plaintiff’s mental health care provider. Docket No. 17, p. 18-22.
Citing the restrictions found by Dr. Blevins, which Plaintiff asserts are supported by objective
evidence in the record, Plaintiff contends that he “cannot perform a full range of sedentary
work.” Id. at 20. Plaintiff argues that the ALJ should not have relied on the opinions of Dr.
Keown and “the reviewing physician,” as Dr. Keown gave his opinion without having seen Xrays of Plaintiff taken on September 13, 2011, and the reviewing physician gave an opinion
without having seen X-rays of Plaintiff that were taken on November 20, 2011, which Plaintiff
contends “showed in more detail the severity of [Plaintiff’s] degenerative disc disease.” Id.
Further, Plaintiff argues that “[n]either the consultative doctor nor the reviewing doctor had the
24
benefit of the records of [Plaintiff’s] hypertension and his treatment for pain in 2012.” Id.
Plaintiff contends that he therefore satisfies the first prong of the test for analyzing a claimant’s
assertions of pain laid out by the Sixth Circuit in Duncan v. Sec’y of Health & Human Servs.,
801 F.2d 847, 853 (6th Cir. 1986). Id. at 21. Regarding the second prong of the “Duncan test,”
Plaintiff argues that he could meet it by satisfying one of the alternative parts, but that the ALJ
“did not fully discuss the relevant factors or apply them to the facts of this case.” Id. at 21-22.
Plaintiff contends that “[t]he factors set out in 20 C.F.R. section 416.929(c)(3) support
[Plaintiff’s] allegations of disabling pain.” Id. at 22.
Defendant does not specifically address Plaintiff’s argument that the ALJ erred in finding
that Plaintiff can perform light work, but does assert that “[s]ubstantial evidence supports the
ALJ’s decision (Tr. 34-56).” Docket No. 18, p. 3. Regarding Plaintiff’s argument that X-rays
taken in 2011 showed severe degenerative disc disease, Defendant responds that the ALJ
acknowledged that X-rays of Plaintiff’s spine show abnormalities, and also considered that Dr.
Keown had described inconsistencies including symptom magnification. Id. at 6, citing TR 45,
270-72.
“Residual Functional Capacity” is defined as the “maximum degree to which the individual
retains the capacity for sustained performance of the physical-mental requirements of jobs.” 20
CFR § 404, Subpt. P, App. 2 § 200.00(c). With regard to the evaluation of physical abilities in
determining a claimant’s RFC, the Regulations state:
When we assess your physical abilities, we first assess the
nature and extent of your physical limitations and then
determine your residual functional capacity for work activity
on a regular and continuing basis. A limited ability to perform
certain physical demands of work activity, such as sitting,
standing, walking, lifting, carrying, pushing, pulling, or other
physical functions (including manipulative or postural
25
functions, such as reaching, handling, stooping or crouching),
may reduce your ability to do past work and other work.
20 CFR § 404.1545(b).
The ALJ in the case at bar ultimately determined that Plaintiff retained the RFC for light
work with additional limitations. TR 43. The ALJ explained:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b), except the claimant can only
occasionally perform such postural activities as climbing,
balancing, stooping, crouching, crawling and kneeling. The
claimant should not have concentrated exposure to pulmonary
irritants. The claimant can understand, remember, and carry
out simple and 1 to 3 step detailed instructions, but he is better
suited working in an object-focused setting with things rather
than people. The claimant reads at a fifth grade level and
performs math at a fourth grade level.
Id.
In so finding, the ALJ considered the opinion evidence, as discussed and cited above,
including the opinions of Dr. Keown and the State agency reviewing physicians. TR 41, 45-49.
The ALJ also considered the medical evidence of record. TR 44-46. Specifically, the ALJ
stated:
In terms of the claimant’s alleged back impairment, he reports
he has suffered back pain since an injury in 1996. He
nonetheless was able to work very successfully for the next two
decades. Lumbar x-rays in November 2011 show “mild”
changes at the lumbosacral junction. There were minimal
changes at acetabulum (Exhibit 7F). There were osteophytes
along the thoracic and lumbar spine. X-rays in September
2011 showed degenerative disc disease (Exhibit 2F).
TR 44, citing TR 270-75, 310-36.
The ALJ also considered Plaintiff’s activities of daily living:
26
In activities of daily living, the claimant has mild restriction.
As noted above, he was able to work and support himself for
decades. He cares for his own toileting and personal needs.
He does not need reminders to take medications. He is able to
count money and use checkbook [sic]. He watches television
(Exhibit 5F). The level of limitation found in this domain is
fully consistent with the assessment from the state agency
psychologist (Exhibit 5F).
In social functioning, the claimant has moderate difficulties.
The claimant alleges he does not like to go out in public; he
does not like to go shopping. However, he lives successfully
with his wife. He talks with his brother on the telephone. He
interacted within normal limits at multiple consultative exams
and at the hearing. The level of limitation found in this domain
is fully consistent with the assessment from the state agency
psychologist (Exhibit 5F).
With regard to concentration, persistence or pace, the claimant
has moderate difficulties. The claimant likely suffers below
average or possibly borderline intellectual functioning, and this
likely cause [sic] moderate restriction in this domain.
However, at a psychological consultative exam, memory
functioning was adequate (Exhibit 3F). He has been able to
function for decades in a work setting, including at a highly
skilled level. The claimant was able to follow lines of
questioning at the hearing. The level of limitation found in this
domain is fully consistent with the assessment from the state
agency psychologist (Exhibit 5F).
TR 42, citing TR 276-81, 292-305.
The ALJ also considered Plaintiff’s testimony, stating:
The claimant testified that he had heart trouble in 2004. There
is no evidence of this in the record, and no evidence of cardiac
treatment. Following an echocardiogram from March 2012
which was largely normal, the claimant reported to private
consultative examiner Dr. Melvin Blevins in June 2012 that he
had or may have had arteriosclerotic heart disease (ASHD)
(Exhibit 12F). However, the treatment notes show the
condition of the claimant’s heart was examined at Cookeville
Regional Medical Center in July 2012 when he reported chest
pain (Exhibit 13F). All testing, including a catheterization, a
stress test, and an echocardiogram were normal. The claimant
27
does not appear to have sought any subsequent cardiac testing
or treatment. (Exhibits 12F, 13F and 27F). Treatment notes at
Summit in August 2012 show “no history of ASHD” (Exhibit
19F, p. 12). In short, the objective evidence does not show
heart disease.
...
The claimant testified at the hearing. He lives with his wife,
who works part-time. The claimant is forty-five years old. He
has a ninth grade education and took special education classes
in seventh and eighth grades. He last worked in November
2008. The claimant worked in most years from 1988 to 2008
as a driller or blaster. He has had a commercial driver’s license
in the past. He had to take a test for the blaster job, but he said
he had help, which he explained to mean he took a class
beforehand where they went over the material which was on
test [sic]. He alleges back pain. He has hypertension and
hepatitis C. He goes to a center for treatment for anxiety. He
does not do many household chores. He does not like to be
around people. He stated he had not used alcohol in the past
five years. He last used marijuana around Christmas 2012.
TR 40, 44, citing TR 378-98, 450, 543-628.
Plaintiff also argues that the ALJ failed to give appropriate consideration to his GAF
score of 50, and failed to credit that his GAF score was assigned by Nurse Robertson, one of
Plaintiff’s mental health care providers. Docket No. 17, p. 18-19. Plaintiff contends that “[t]he
ALJ indicates he does not know who assigned the GAF score but the score in 2012 was clearly
signed by Holly Robertson. (Tr. 381).” Id. at 19.
Defendant argues that the ALJ merely stated that the professional status of the person
completing a form assessment for Plaintiff in 2009 was unclear, and that this statement is correct,
“as the form lists no professional status for the rater, Nathan Miller (Tr. 517).” Id. Regarding
this form, Defendant argues that:
28
Concerning this form, it was not particularly relevant for the
reasons set forth by the ALJ. It was apparently not completed
by a doctor, it lacked supporting objective information, and, as
the ALJ indicated, it was inconsistent with subsequent
treatment records which showed improvement over time (Tr.
48, citing Life Care records, e.g. Tr. 365). In June 2012, Ms.
Robertson had noted that Plaintiff had improved depression
(Tr. 365).
Id. at 13. Defendant contends that Plaintiff is incorrect in asserting that the ALJ was referring
here to a GAF provided by Nurse Robertson. Id. at 12-13. Defendant further contends that in
any event, “a GAF score is not determinative to the issue of disability,” but rather “can be
considered as opinion evidence, but is never dispositive of impairment severity.” Id. Defendant
asserts that there are “many problems associated with GAF ratings as there is no way to
standardize measurement and evaluation.” Id. Even if the GAF scores assessed by Nurse
Robertson were to be considered as part of her opinions, Defendant argues that as her opinions
are from an “other source,” they are not “medical opinions,” and were properly considered by the
ALJ. Id. at 13-14.
As an initial matter, GAF scores are not determinative of disability for Social Security
purposes. In fact, the Social Security Administration has declined to endorse the GAF scale for
“use in the Social Security and SSI disability programs,” and has indicated that GAF scores have
no “direct correlation to the severity requirements in [the] mental disorders listings.” See
Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed.
Reg. 50746-01 (August 21, 2000). Although “the GAF is a test used by mental health
practitioners with respect to planning treatment and tracking the clinical progress of an
individual in global terms, the ALJ is not bound to consider its results at the exclusion of other
medically reliable evidence.” Presley v. Colvin, 2014 U.S. Dist. LEXIS 180027 (M.D. Tenn.
29
2014) at 38, citing Alvarez v. Barnhart, 2002 U.S. Dist. LEXIS 21678, 2002 WL 31466411, at
*8 (W.D. Tex. October 2, 2002). Nor is a GAF score determinative of an individual’s RFC
assessment. Id. at 38-39. (“A GAF score is not a rating typically relied upon with respect to
assessing an individual’s RFC under the Act.”); see also Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 241 (6th Cir. 2002) (GAF score is not essential in assessing RFC).
Regarding the issue of whether the ALJ considered GAF scores assigned by Nurse
Robertson, the ALJ discussed more than one item in the record that involved GAF scores,
including “a form assessment in April 2009 (Exhibit 25F).” TR 48. Exhibit 25F does contain a
form assessment dated April 23, 2009, that appears to have been completed by “rater” Nathan
Miller (Mr. Miller’s professional information is not provided on the form, although Defendant
correctly notes that Mr. Miller is identified later in the record as having an M.A. degree). See TR
514-17, 530. As discussed above, the ALJ explained his reasons for giving this form assessment
less weight: the form was completed two years before Plaintiff filed his application, the overall
record shows Plaintiff’s conditions improved over time, the ALJ gave more weight to the
opinion of State agency psychologist Dr. Paul, because it was consistent with the record as a
whole and because the state agency consultants concurred with Dr. Paul’s opinion upon
reconsideration, the ALJ did not find Plaintiff’s allegations to be fully credible and “the record is
unclear as to the professional status of the individual who completed this form.” TR 48-49.
Thus, the ALJ appropriately considered and evaluated this part of the record, explaining his
reasons for giving it less weight, as cited above. TR 48.
There is, however, another evaluation of Plaintiff in the record, also dated April 23, 2009,
which is signed by Nurse Robertson (TR 521-22), and this appears to be the evaluation to which
Plaintiff is referring. Docket No. 17, p. 19. This evaluation is also part of Exhibit 25F. See TR
30
521-22. As discussed above, the ALJ cited Exhibit 25F in his discussion of Plaintiff’s treatment
history, demonstrating that he was aware of this record and considered it in making his
determinations. TR 48.
Plaintiff’s claim that “[t]he ALJ indicates he does not know who assigned the GAF score
but the score in 2012 was clearly signed by Holly Robertson. (Tr. 381),” cites to a page in the
record that is part of a Medical Source Statement completed by Dr. Blevins, not a note by Nurse
Robertson. See TR 381. The record does contain a note from Nurse Robertson from 2012 in
which she assigned a GAF score. TR 362-77. As discussed above, the ALJ demonstrated
awareness of Nurse Robertson’s notes and her care for Plaintiff over the years by citing to “notes
in 2011 and 2012 at Life Care.” TR 48. The ALJ also noted that Plaintiff “received a Global
Assessment of Functioning of 45 in 2009, but a GAF of 50 and 55-60 in 2011.” TR 48.
As has been demonstrated, the ALJ evaluated the medical and testimonial evidence of
record, including Plaintiff’s degenerative disc disease, X-rays of Plaintiff’s lumbar spine, reports
of pain, and GAF scores, and ultimately determined that Plaintiff retained the RFC to perform
light work with additional limitations. TR 43. As cited above, the ALJ assessed Plaintiff’s
statements regarding his subjective complaints, and found them to not be fully credible, for the
reasons previously discussed. TR 46-47. Regarding Plaintiff’s argument that Dr. Keown and the
reviewing physician did not have access to records regarding Plaintiff’s hypertension or pain
treatment, as addressed above, the ALJ explained why he gave more weight to the opinions of
these physicians. See TR 47-48. Specifically, the ALJ gave Dr. Keown’s opinion some weight
because Dr. Keown examined Plaintiff personally, but noted that “[i]n this case, however, the
ability of the State agency physician to examine the entire file actually resulted in a more
restrictive residual functional capacity than Dr. Keown recommended,” demonstrating that the
31
ALJ was aware that Dr. Keown did not have access to the full file, and therefore relied more on
the opinion of the State agency physician. TR 47. The ALJ properly evaluated the evidence of
record, including the opinion evidence, the medical evidence, Plaintiff’s activities of daily living,
and Plaintiff’s testimony in reaching this RFC determination, and the Regulations do not require
more.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff’s Motion for
Judgement on the Administrative Record be DENIED, and that the decision of the Commissioner
be AFFIRMED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986); Fed. R. Civ. P. 72.
___________________________________
JEFFERY S. FRENSLEY
United States Magistrate Judge
32
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