Carter v. Social Security Administration
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 9/19/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
DARREN SHAWN CARTER
NANCY A. BERRYHILL
Acting Commissioner of
Social Security 1
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain
judicial review of the final decision of the Social Security Administration (“Commissioner”)
denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”), as provided under Titles II and XVI of the Social Security Act (“the Act”). The
case is currently pending on Plaintiff’s motion for judgment on the administrative record (Docket
Entry No. 16), to which Defendant has responded. Docket Entry No. 18.
Upon review of the administrative record as a whole and consideration of the parties’
filings, Plaintiff’s motion (Docket Entry No. 16) is DENIED and the decision of the
Commissioner is AFFIRMED.
Plaintiff filed an application for DIB and SSI on October 3, 2012. See Transcript of the
Administrative Record (Docket Entry No. 10) at 86-87. 2 He alleged a disability onset date of
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn W. Colvin as the defendant in this suit.
The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding page number(s) as numbered in large black print on the bottom right
July 1, 1998. AR 86-87. 3 Plaintiff asserted that he was unable to work because of lower back
pain, pain in his bilateral wrists, and emphysema. AR 88.
Plaintiff’s applications were denied initially and upon reconsideration. AR 86-87, 114-15.
Pursuant to his request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Donna Lefebvre on January 28,
2015. AR 40. The ALJ subsequently denied the claim on March 11, 2015. AR 22-24. The
Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on January 8, 2016
(AR 1-3), thereby making the ALJ’s decision the final decision of the Commissioner. This civil
action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g).
II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on March 11, 2015, in which she made the
following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2008.
2. The claimant has not engaged in substantial gainful activity since September
13, 2006, the alleged onset date. (20 CFR 404.1571 et seq., and 416.971 et
3. The claimant has the following severe impairments: chronic obstructive
pulmonary disease, lumbar degenerative disc disease, incisional hernia and
obesity (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
corner of each page. All other filings are hereinafter referenced by the abbreviation “DE” followed by the
corresponding docket entry number and page number(s) where appropriate.
He later amended this to September 13, 2006 during the administrative hearing. AR 45.
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 404.1567(b) and 416.967(b) except the claimant could lift up to
twenty pounds occasionally and ten pounds frequently. With normal breaks in
an eight-hour day, he could stand and walk for up to six hours and sit for up to
six hours. The claimant could occasionally balance, stoop, kneel, crouch,
crawl and climb ramps, stairs, ladders, or scaffolds. Additionally, he could
frequently finger objects with the right upper extremity. The claimant can
perform jobs that do not require concentrated exposure to extreme heat or
cold, excessive vibration and pulmonary irritants.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565
7. The claimant was born on September 24, 1960 and was 45 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date.
The claimant subsequently changed age category to closely approaching
advanced age (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,
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 September 13, 2006, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
III. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of the administrative record. Accordingly, the court will discuss those
matters only to the extent necessary to analyze the parties’ arguments.
IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this court upon judicial review are: (i) whether the decision of the
Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made
legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). See Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining
substantial evidence standard in context of Social Security cases); Kyle v. Comm’r of Soc. Sec.,
609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’s decision must be affirmed if it is
supported by substantial evidence, “even if there is substantial evidence in the record that would
have supported an opposite conclusion.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
Substantial evidence is defined as “more than a mere scintilla” and “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L.
Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v.
Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting
language substantially similar to that in Richardson).
The court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions
of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v.
Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The court must accept the ALJ’s explicit
findings and determination unless the record as a whole is without substantial evidence to
support the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing an entitlement to benefits by proving
his “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by medically
acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 432(d)(3) and
1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), and 404.1513(d). “Substantial gainful activity”
not only includes previous work performed by the claimant, but also, considering the claimant’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which the
claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired
if he applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s
alleged disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that he is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that he suffers from a severe impairment that meets the 12month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has
satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless
of age, education or work experience, if the impairment at issue either appears on the regulatory
list of impairments that are sufficiently severe as to prevent any gainful employment or equals a
listed impairment. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R.
§§ 404.1520(d), 416.920(d). A claimant is not required to show the existence of a listed
impairment in order to be found disabled, but such showing results in an automatic finding of
disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122
(6th Cir. 1989).
If the claimant’s impairment does not render him presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to his past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). In determining a claimant’s RFC,
for purposes of the analysis required at steps four and five, the ALJ is required to consider the
combined effect of all the claimant’s impairments, mental and physical, exertional and
nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen,
853 F.2d 483, 490 (6th Cir. 1988). At the fourth step, the claimant has the burden of proving an
inability to perform past relevant work or proving that a particular past job should not be
considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot
satisfy the burden at the fourth step, disability benefits must be denied because the claimant is
not disabled. Combs, supra.
If a claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quoting Walters v. Comm’r of Soc. Sec., 402 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a claimant can perform. Longworth, 402
F.3d at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981),
cert. denied, 461 U.S. 957, 103 S. Ct. 2428, 77 L. Ed. 2d 1315 (1983) (upholding the validity of
the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden
under appropriate circumstances). Even if the claimant’s impairments prevent the claimant from
doing past relevant work, if other work exists in significant numbers in the national economy that
the claimant can perform, the claimant is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 652 (6th Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,
1028-29 (6th Cir. 1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir.
1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation
process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen,
880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the evaluative
process is appropriate in some circumstances).
C. The ALJ’s Five-Step Evaluation of Plaintiff
In the instant case, the ALJ resolved Plaintiff’s claim at step five of the five-step process.
The ALJ found that Plaintiff met the first two steps, but determined at step three that Plaintiff
was not presumptively disabled because he did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff was unable to
perform past relevant work. At step five, the ALJ found that Plaintiff’s RFC would allow him to
perform light work with express limitations to account for his severe impairments, and that
considering his education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. AR 27-34.
D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by (1) improperly evaluating his credibility, and (2)
failing to provide additional restrictions in the RFC involving his right upper extremity. DE 17 at
13-17. Plaintiff therefore requests that this case be reversed and benefits awarded pursuant to
sentence four of 42 U.S.C. § 405(g), or, alternatively, remanded for further consideration. Id. at
Sentence four of 42 U.S.C. § 405(g) states the following:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
Id. “In cases where there is an adequate record, the [Commissioner’s] decision denying benefits
can be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery
v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues have been resolved and the record
adequately establishes a claimant’s entitlement to benefits. Faucher v. Secretary, 17 F.3d 171,
176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (1994). The court addresses
Plaintiff’s assertions of error below.
Plaintiff asserts that the ALJ committed reversible error by failing to properly evaluate
his credibility. Plaintiff states that the ALJ “focused on a few points to the exclusion of the thrust
of the substantial evidence,” which Plaintiff claims is supportive of a finding that he experiences
significant pain at the level of severity alleged throughout the administrative process. DE 17 at
When evaluating a claimant’s subjective complaints, the ALJ must look to see if the
claimant has a medical impairment that could reasonably be expected to produce the pain alleged
and consider all other evidence that would lead to a finding of disability. 20 C.F.R. §
404.1529(a). Notably, the Sixth Circuit has indicated that a reviewing court “should be
particularly reluctant to substitute its judgment of the credibility of the claimant for that of the
ALJ, since the ALJ has seen the claimant in the flesh and has had the opportunity to observe his
demeanor.” Bailey v. Sec’y of Health & Human Servs., 922 F.2d 841 (6th Cir. 1991) (citing
Gooch v. Sec’y of Health & Human Servs., 833 F.2d 589, 592 (6th Cir. 1987)) (per curiam), cert.
denied, 484 U.S. 1075 (1988) (internal quotations omitted). In fact, the court “may not disturb [a
credibility determination] absent compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th
Cir. 2001). However, the ALJ’s assessment “must be supported by substantial evidence.” Calvin
v. Comm’r of Soc. Sec., 437 F. App’x 370, 371 (6th Cir. 2011) (citing Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 531 (6th Cir. 1997)).
The ALJ in the instant matter concluded that Plaintiff’s complaints of disabling pain were
“partially credible” AR 31. To support this finding, the ALJ highlighted the mild findings
derived from imaging studies of Plaintiff’s lumbar and cervical spine, which included a small
disc protrusion at the T11-12 level without spinal stenosis, 4 a small disc protrusion at the L5-S1
level without central or lateral stenosis, and a mild degree of disc desiccation at the L4-5 level
without central or lateral stenosis. AR 29, 393-94. The ALJ also noted that despite Plaintiff’s
claim that he can only sit for 12 minutes, stand for 10 minutes, and walk for up to 10 minutes
(AR 62-63, 65), as well as his claims that he cannot lift anything without experiencing pain,
shave without the assistance of his wife, or stand to get dressed (AR 267-68), he consistently
demonstrated a normal gait and station, normal motor strength in the wrists, elbows, ankles, and
knees, full grip strength, and full range of motion of the cervical spine, knees, and ankles on
examination. AR 29, 455.
The ALJ further observed that Plaintiff has received only conservative treatment for his
back condition, which “suggests the absence of a disabling condition.” Branon v. Comm’r of Soc.
Sec., 539 F. App’x 675, 678 (6th Cir. 2013). See also Curler v. Comm’r of Soc. Sec., 561 F.
App’x 464, 473 (6th Cir. 2014) (“Had [the claimant] suffered from severe pain associated with
Of note, the interpreting radiologist questioned whether this disc protrusion was actually
present, noting that the purported disc protrusion was “of questionable mass-effect as it is so small and the
neural foramina is patent,” and later stating that the “questionable area in the disc could only be seen on
one imaging plane and may therefore be an artifact.” AR 392-93.
her back condition, the medical records would have revealed severe back or leg abnormalities ...
recommendations for more aggressive treatment, and more significant doctor-recommended
functional limitations.”). Indeed, the court notes that Plaintiff’s final documented visit at
Cookeville Medical Center approximately two months after the alleged onset date revealed a
decrease in tenderness over the thoracic spine and muscles and “much improved” pain symptoms
following Plaintiff’s “excellent [response]” to steroid medication. AR 397.
Despite such evidence, Plaintiff points to a report completed by Dr. Terrence Leveck
following a consultative examination in November of 2012 to support his allegations of disabling
pain. Yet it is precisely such findings that bolster the ALJ’s conclusion that the evidence of
record “simply do[es] not support the allegations of extreme pain and weakness or the presence
of serious attributable exertional limitations.” AR 31. As discussed by the ALJ, Dr. Leveck noted
that Plaintiff demonstrated a normal gait and station, normal thoracolumbar spine flexion, and a
“mildly positive” straight leg testing. AR 30, 455. Dr. Leveck additionally found that Plaintiff
could stand independently on both lower extremities, squat without issue, and that Plaintiff had a
full range of motion with respect to his cervical spine, the digits in both hands, his bilateral
knees, and his bilateral ankles. AR 455. Dr. Leveck further found that Plaintiff had normal
adduction, abduction, and external rotation. AR 455. Notably, Dr. Leveck’s opinion regarding
Plaintiff’s physical limitations was less restrictive than the RFC ascribed by the ALJ, with Dr.
Leveck indicating that during an eight-hour workday Plaintiff would be able to sit for eight
hours, stand and walk for six hours, lift 10 pounds frequently, and lift 20 pounds occasionally.
AR 455. 5 All such findings contradict Plaintiff’s claims that he has significant difficulty with
squatting, bending, standing, walking, sitting, and kneeling. AR 267-74.
Plaintiff additionally relies on a Cookeville Medical Center office note from September
20, 2006 to support his allegation that the ALJ ignored evidence that “he was obviously in pain.”
DE 17 at 16. However, the ALJ discussed Plaintiff’s treatment at this facility, including the
examination findings that demonstrated muscle tenderness and some pain during straight leg
testing (AR 29), before concluding that Plaintiff’s treatment records did not reveal significant
physical limitations. AR 31. Notably, while the note referenced by Plaintiff indicates that he
“[a]ppear[ed] to be in pain” on September 20, 2006 (AR 407), the remaining records from
Cookeville Medical Center document significant improvement in his symptoms, including a
decrease in muscle tenderness and “some pain but much improved.” See AR 397, 402, 404-06.
Such findings tend to support the ALJ’s conclusion that Plaintiff’s complaints of pain are
“disproportionate to the objective clinical and diagnostic medical evidence.” AR 31.
Plaintiff finally cites a letter from Dr. Walter Wheelhouse, who appears to have
performed an independent medical examination in connection with one of Plaintiff’s previous
workers’ compensation claims, which purportedly shows that Plaintiff “was disabled by pain
caused by the degenerative changes in his back.” DE 17 at 15. The court notes, however, that the
letter was written in December of 2000, approximately six years before Plaintiff’s alleged onset
date. AR 325-28. Plaintiff continued to engage in substantial gainful activity until September of
2006, thus making the findings from Dr. Wheelhouse’s single examination minimally probative.
See Banks v. Celebrezze, 341 F.2d 801, 804 (6th Cir. 1965) (noting that substantial work history
Plaintiff incorrectly claims that Dr. Leveck found that Plaintiff could sit for just six hours. DE
17 at 15-16.
beyond the alleged onset of impairment would “constitute substantial evidence” that claimant is
not disabled). See also Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 452-53 (6th Cir.
1986) (holding that claimant is not disabled by impairment after performing gainful activity for
many years after the alleged onset). The court also notes that Plaintiff himself does not allege
that he became disabled due to a back condition until 2006. AR 54.
Similarly, Plaintiff cites an office note documenting an encounter with Dr. Joseph Jestus
in June of 2000 that is even less persuasive. Plaintiff claims that Dr. Jestus found that Plaintiff
“had some limitations in flexion and extension rotation of his hip” (DE 17 at 14), yet this finding
is not contained anywhere in the note cited by Plaintiff. AR 378-79. Furthermore, even assuming
that an encounter that took place more than six years before the alleged onset date is relevant to
the instant claim, the findings of Dr. Jestus support the ALJ’s conclusion that Plaintiff’s claims
of disabling pain are only partially credible. A straight leg test was negative, motor strength was
normal, and an MRI was “very minimally positive over the left L5 nerve root.” AR 378-79. 6
Plaintiff’s reliance on an office note from Dr. Jestus and Dr. Wheelhouse’s independent medical
examination is misplaced, and therefore unavailing.
“The ALJ’s findings as to a claimant’s credibility are entitled to deference, because of the
ALJ’s unique opportunity to observe the claimant and judge her subjective complaints.” Buxton
v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (internal citations omitted). In evaluating subjective
complaints, the ALJ must consider all evidence that would lead to a finding of disability,
including “objective medical evidence from an acceptable medical source.” 20 C.F.R. §
404.1529(a). Plaintiff has identified no such evidence to support his allegations of a disabling
Dr. Jestus also concluded that Plaintiff “will retain no permanent impairment as a result of
[Plaintiff’s] back injuries.” AR 187.
condition, which severely undermines his argument. See Duncan v. Sec’y of Health & Human
Servs., 801 F.2d 847, 853 (6th Cir. 1986) (affirming ALJ’s finding that claimant’s subjective
complaints were not supported by substantial evidence because no treating physician or other
provider diagnosed claimant’s pain as severe or disabling). This leaves only his subjective
complaints of disabling pain, which are insufficient to establish the existence of disabling
symptoms. See id. (“[S]ubjective allegations of disabling symptoms, including pain, cannot alone
support a finding of disability.”). Moreover, the ALJ provided a detailed discussion of the
evidence that contradicts Plaintiff’s allegations of disabling pain. See AR 29, 31-32.
Accordingly, the court finds that substantial evidence supports the ALJ’s credibility
Plaintiff next argues that the ALJ erred by concluding that Plaintiff is able to “frequently
finger objects with the right upper extremity” (AR 28), and claims that he is instead limited to
only “occasional” use of the right upper extremity. DE 17 at 16-17. Plaintiff relies on two pieces
of evidence to support this assertion, including a workers’ compensation settlement agreement
from 2005 in which the parties agreed that Plaintiff’s carpal tunnel syndrome resulted in an
industrial disability rating of 20.76% to the upper extremity (AR 193), 7 and Dr. Leveck’s
notation during his consultative examination in 2012 that Plaintiff’s “[f]ine motor function might
be somewhat impaired due to his wrist problems.” AR 455.
Plaintiff’s arguments in support of this assertion of error are similarly unpersuasive. An
industrial disability rating from a workers’ compensation settlement says nothing about any
The “industrial disability rating” is not an impairment rating assigned by a physician, but instead
a rating agreed upon by the parties. AR 193.
functional limitations that may have resulted from the carpal tunnel injury, thus rendering it
minimally relevant in a claim for disability. See Hill v. Comm’r of Soc. Sec., 560 F. App’x 547,
551 (6th Cir. 2014) (“[D]isability is determined by the functional limitations imposed by a
condition, not the mere diagnosis of it.”) (citing Higgs, 880 F.2d at 863). Even if the industrial
disability rating from the workers’ compensation settlement had bearing on the RFC in the
instant matter, the court notes that Plaintiff’s treating physician in connection with the carpal
tunnel injury, Dr. Gregory Roberts, opined that Plaintiff had “no impairment secondary to carpal
tunnel syndrome as he now has normal sensibility,” as well as full range of motion in the wrist
and hand, no tenderness, and full strength. AR 329. Such findings do not support more severe
restrictions with respect to Plaintiff’s upper extremity.
Similarly, Dr. Leveck’s statement that Plaintiff’s fine motor function “might be
somewhat impaired” provides no specific nonexertional limitations that could be incorporated
into the RFC. See Beavers v. Comm’r of Soc. Sec., No. 14-cv-12305, 2015 WL 3967055, at *4
(E.D. Mich. June 30, 2015) (holding that physician’s statement that claimant should “limit his
activities” provided “no basis upon which the ALJ could have derived functional limitations”).
See also Sanders v. Comm’r of Soc. Sec., No. 1:15-cv-01268, 2017 WL 710257, at *6 (W.D.
Mich. Feb. 23, 2017) (noting that a physician’s statement that a claimant may become confused
and may have a seizure at work was “so speculative and vague it is impossible to find they are in
any way inconsistent with Plaintiff's RFC”); Carney v. Colvin, No. 3:12-cv-0744, 2015 WL
5089783, at *8 (M.D. Tenn. Aug. 17, 2015) (affirming ALJ’s decision to accord little weight to
examining physician’s opinion that “fail[ed] to give specifics as to what actual limitations were
imposed on [the claimant’s] functional ability”). Plaintiff fails to identify any regulation or
opinion containing a contrary position and provides no support for his contention that the “record
as a whole support[s] a restriction to only occasional use of the right upper extremity[.]” DE 17
at 17. Plaintiff’s argument is thus without merit.
The ALJ based her finding regarding Plaintiff’s fingering ability on the opinion of Dr.
Roslynn Webb, which was accorded great weight. AR 32, 123. Plaintiff makes no argument
regarding the supportability of this opinion, nor does he identify any evidence that controverts
the limitations contained in the RFC. This assertion of error is therefore rejected and the decision
of the Commissioner is affirmed.
For the above stated reasons, Plaintiff’s motion for judgment on the administrative record
(DE 16) is DENIED. An appropriate Order will accompany this memorandum.
ENTER this 19th day of September 2017.
ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE
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