Tallent v. Social Security Administration
REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that Plaintiff's motion for judgment on the administrative record (Docket Entry No. 16 ) be DENIED, and the Commissioner's decision be AFFIRMED. The parties have fourteen (14) da ys of being served with a copy of this R&R to serve and file written objections to the findings and recommendation proposed herein. A party shall respond to the objecting party's objections to this R&R within fourteen (14) days after being serv ed with a copy thereof. Failure to file specific objections within fourteen (14) days of receipt of this R&R may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, 142, reh'g denied, 474 U.S. 111 (1986); see Alspaugh v. McConnell, 643 F.3d 162,166 (6th Cir. 2011). Signed by Magistrate Judge Joe Brown on 12/6/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
RONALD DAVID TALLENT,
Acting Commissioner of
Chief Judge Crenshaw
Magistrate Judge Brown
To: The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge
REPORT AND RECOMMENDATION
Pending before the court is Plaintiff’s motion for judgment on the administrative record
(Docket Entry No. 16), to which Defendant Commissioner of Social Security (“Commissioner”) filed
a response (Docket Entry No. 19). Upon consideration of the parties’ filings and the transcript of
the administrative record (Docket Entry No. 10),2 and for the reasons given herein, the Magistrate
Judge RECOMMENDS that Plaintiff’s motion for judgment be DENIED and that the decision of
the Commissioner be AFFIRMED.
I. PROCEDURAL HISTORY
Plaintiff, Ronald David Tallent, filed an application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act on June 27, 2013, alleging disability onset as of March 30,
2013, due to essential tremors, fibromyalgia, arthritis, depression and anxiety. (Tr. 52, 103, 116).
Nancy Berryhill became acting Commissioner for the Social Security Administration on
January 23, 2017, and is therefore substituted as Defendant. See Fed. R. Civ. P. 25(d).
Referenced hereinafter by page number(s) following the abbreviation “Tr.”
Plaintiff’s claim was denied at the initial level on October 4, 2013, and on reconsideration on January
3, 2014. (Tr. 52, 114-16, 130-35, 139-41). Plaintiff subsequently requested de novo review of his
case by an administrative law judge (“ALJ”). (Tr. 142). The ALJ heard the case on June 6, 2015,
when Plaintiff appeared with counsel and gave testimony. (Tr. 68-95, 97-98). Testimony was also
received by a vocational expert. (Tr. 95-101). At the conclusion of the hearing, the matter was taken
under advisement until August 19, 2015, when the ALJ issued a written decision finding Plaintiff
not disabled. (Tr. 49-62). That decision contains the following enumerated findings:
The claimant meets the insured status requirements of the Social Security Act
through December 31, 2018.
The claimant has not engaged in substantial gainful activity since
March 30, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
The claimant has the following severe impairments: degenerative disc
disease, osteoarthritis, fibromyalgia, obesity, and depressive disorder
(20 CFR 404.1520(c)).
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 and 404.1526).
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
medium work as defined in 20 CFR 404.1567(c) except frequent
climbing ramps and stairs; occasional climbing ladders, ropes, and
scaffolds; frequent balancing, stooping, kneeling, crouching, and
crawling; ability to do one, two, and three step instructions; and
changes introduced gradually and infrequently.
The claimant is capable of performing past relevant work as a
delivery driver. This work does not require the performance of
work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565).
The claimant has not been under a disability, as defined in the Social
Security Act, from March 30, 2013, through the date of this decision
(20 CFR 404.1520(f)).
(Tr. 54, 55, 57, 60, 62).
On August 24, 2016, the Appeals Council denied Plaintiff's request for review of the ALJ’s
decision (Tr. 1-5), thereby rendering that 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. REVIEW OF THE RECORD
The following summary of the medical record is taken from the ALJ’s decision:
In terms of the claimant’s alleged back problems, in December 2011, x-rays of the
lumbar spine revealed mild degenerative disc disease (Exhibit 6F). In 2014, a
magnetic resonance image (“MRI”) of the cervical spine revealed a posterior central
right disc protrusion, and a MRI of the lumbar spine only revealed degenerative disc
changes at T-11-T 12 and degenerative disc and facet changes at L4-5 without
evidence of a herniated disc. Although a musculoskeletal examination in 2015,
revealed a decreased range of motion . . . in extension, flexion, and lateral rotation
of the cervical spine, tenderness in the paralumbar and lumbar spine, a right positive
straight leg raise, and restricted range of motion of the knees, it also revealed normal
muscle strength in upper and lower extremities; and treating physicians have only
recommended conservative treatments, and no surgeries have been recommended nor
mobility assistive devices prescribed (Exhibits 11F, 13F, 16F).
Medical records also indicate a history of joint problems and fibromyalgia. In 2008,
however, an evaluation indicated no significant abnormalities on exam or clear-cut
history to suggest obvious pathology for pain in his extremities and balance
difficulties, and an EMG/NCS revealed normal results with no evidence of myopathy
or neuropathy. The claimant has had joint pain, but his treating physicians have only
prescribed conservative treatments of pain medications and steroid injections. In
2015, the claimant reported that he felt better when he took Prednisone, and an
examination revealed normal muscle sensation and normal strength in the upper and
lower extremities. Despite the claimant’s joint pain, rheumatologist Dr. Sivalingam
Kanagasegar indicated no diffuse soft tissue tender points for fibromyalgia noted.
Furthermore, no treating physician has prescribed any mobility assistive devices or
recommended surgery (Exhibits lF, 8F, 12F, 16F, ).
Furthermore, an examination in 2015, in conjunction with Dr. Clayton’s medical
source statement, and in relation to his alleged impairments, only revealed tenderness
of the left knee, left hip, right shoulder, and neck region upon range of motion; low
back pain to deep palpation with diminished range of motion. Otherwise, the
physical examination was pleasant, and the claimant was in no distress (Exhibit 17F).
Medical records, however, do indicate that the claimant is obese with weight around
257 pounds, height of 5'8", and body mass index (“BMI”) of 39.07 (Exhibit 6F). A
BMI of 30 or above is considered obese. Therefore, in accordance with SSR 02-lp,
the undersigned has considered the impact of obesity on function, including the
claimant’s ability to perform routine movement and necessary physical activity
within a work environment. The undersigned finds that the claimant’s obesity,
combined with his severe impairments, does limit his exertional and nonexertional
activities such that the claimant is limited to the residual functional capacity stated
As for the claimant’s alleged mental impairment, the claimant has only received
appropriate medications from his primary care physician. He has not received any
formal mental health treatment (Exhibits 8F and 10F).
During a psychological consultative examination on September 16, 2013, B. Kathryn
Galbraith, Ph.D. indicated at least an average range of intellectual functioning. He
had a depressed mood and affect mood congruent. The claimant reported that he is
able to prepare simple meals, wash dishes, vacuum, sweep, and do laundry. He has
a driver’s license and drives regularly. He also, however, stated that he does not
manage his own medications or manage his own finances. He showed evidence of
moderate impairment in short-term memory, but no evidence of impairment in his
ability to sustain concentration and in his long-term memory and remote memory
functioning. He showed evidence of a moderate impairment in social relating and
in his ability to adapt to change. He appeared able to follow instructions, both
written and spoken. Dr. Galbraith diagnosed depressive disorder and global
assessment of functioning score of 55 to 60, indicating moderate to the cusp of
moderate and mild symptoms (Exhibit 9F).
III. CONCLUSIONS OF LAW
A. Standard of Review
Review of the Commissioner’s disability decision is narrowly limited to determining whether
the decision is supported by substantial evidence and whether the Commissioner applied the right
legal standards in reaching the decision. Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir.
2014) (citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)). “Substantial
evidence requires ‘more than a mere scintilla’ but less than a preponderance; substantial evidence
is such ‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Buxton v. Halter, 246
F.3d 762, 772 (6th Cir. 2001)).
In determining whether substantial evidence supports the
Commissioner’s findings, a court must examine the record as a whole, “tak[ing] into account
whatever in the record fairly detracts from its weight.” Brooks v. Comm’r of Soc. Sec., 531 F. App’x
636, 641 (6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions of
credibility. See Garner, 745 F.2d at 387 (citing Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir.
1972)). 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)). “This is so because there is a ‘zone of choice’ within
which the Commissioner can act, without the fear of court interference.” Buxton, 246 F.3d at 773
(citations omitted). However, where an ALJ fails to follow agency rules and regulations, the
decision lacks the support of substantial evidence, “even where the conclusion of the ALJ may be
justified based upon the record.” Miller, 811 F.3d at 833 (citation and internal quotation marks
B. Administrative Proceedings
The claimant has the ultimate burden of establishing his 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 result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (“[T]he claimant
bears the burden of proving the existence and severity of limitations caused by her impairments and
the fact that she is precluded from performing her past relevant work.”). The claimant’s “physical
or mental impairment” must “result from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id.
§ 423(d)(3). The Commissioner applies a five-step inquiry to determine whether an individual is
disabled within the meaning of the Social Security Act, as described by the Sixth Circuit as follows:
(1) a claimant who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings; (2) a claimant who does not have a severe
impairment will not be found to be disabled; (3) a finding of disability will be made
without consideration of vocational factors if a claimant is not working and is
suffering from a severe impairment which meets the duration requirement and which
meets or equals a listed impairment in Appendix 1 to Subpart P of the Regulations.
Claimants with lesser impairments proceed to step four; (4) a claimant who can
perform work that he has done in the past will not be found to be disabled; and (5)
if a claimant cannot perform his past work, other factors including age, education,
past work experience and residual functional capacity must be considered to
determine if other work can be performed.
Parks v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. §§ 404.1520; 416.920. The claimant bears the
burden through step four of proving the existence and severity of the limitations his impairments
cause and the fact that he cannot perform past relevant work; however, at step five, “the burden
shifts to the Commissioner to ‘identify a significant number of jobs in the economy that
accommodate the claimant’s residual functional capacity . . . .” Kepke v. Comm’r of Soc. Sec., 636
F. App’x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th
The Social Security Administration can carry its burden at the fifth step of the evaluation
process by relying on the Medical-Vocational Guidelines, otherwise known as “the grids,” but only
if a nonexertional impairment does not significantly limit the claimant, and then only when the
claimant’s characteristics precisely match the characteristics of the applicable grid rule. See
Anderson v. Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010); Wright v. Massanari, 321
F.3d 611, 615-16 (6th Cir. 2003). The grids otherwise only function as a guide to the disability
determination. Wright, 321 F.3d at 615-16; see also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir.
1990). Where the grids do not direct a conclusion as to the claimant’s disability, the Commissioner
must rebut the claimant’s prima facie case by coming forward with proof of the claimant’s
individual vocational qualifications to perform specific jobs, typically through vocational expert
(“VE”) testimony. Anderson, 406 F. App’x at 35; see Wright, 321 F.3d at 616 (citing SSR 83-12,
1983 WL 31253, *4 (Jan. 1, 1983)).
When determining a claimant’s residual functional capacity (“RFC”) at steps four and five,
the Commissioner must 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);
Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R. § 404.1545(e)).
C. Claims of Error
1. The ALJ failed to give appropriate weight to the opinion of Plaintiff’s
Plaintiff argues that the ALJ did not give appropriate weight to the opinion of Plaintiff's
treating physician, Dr. Thomas Clayton. (Docket Entry No. 17, at 16). Plaintiff asserts that Dr.
Clayton’s medical opinion was contradicted only by a non-treating, non-examining doctor’s report
that predated MRIs of Plaintiff’s back and neck and that the ALJ improperly gave great weight to
the reviewing doctors’ evaluation even though there was substantial treatment after these
evaluations. Id. at 18. Plaintiff asserts that Dr. Clayton’s opinion was sufficiently supported by
medical findings and that the ALJ erred in rejecting his opinion. Id. 19. In response, Defendant
contends that the ALJ considered Dr. Clayton’s opinions and treatment throughout the record, but
determined that his opinion was due little weight as the opinion was inconsistent with Plaintiff’s
daily activities and also inconsistent with the records from Dr. Clayton and another physician.
(Docket Entry No. 19, at 4).
Social Security regulations address three classifications of medical sources: treating sources;
examining but non-treating sources; and non-examining sources. 20 C.F.R. § 404.1527; 20 C.F.R.
§ 404.1502. A treating source has a history of medical treatment and an ongoing treatment
relationship with the plaintiff consistent with accepted medical practice. Id. § 404.1502. An
examining non-treating source has examined the plaintiff, but does not have an ongoing treatment
relationship. Id. A non-examining source is a physician, psychologist, or other acceptable medical
source who has not examined the plaintiff, but provides a medical or other opinion based upon
medical and treatment records. Id. The opinion of an examining non-treating source is given greater
weight than that from a non-examining source, and an opinion from a treating source is afforded
greater weight than an examining non-treating source. Gayheart v. Comm’r of Soc. Sec., 710 F.3d
365, 375 (6th Cir. 2013) (citing 20 C.F.R. §§ 404.1502, 404.1527(c)(1), (2)). “[W]hen the physician
is a specialist with respect to the medical condition at issue,” the specialist’s “opinion is given more
weight than that of a non-specialist.” Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 651 (6th Cir.
2011) (citing 20 C.F.R. § 404.1527([c])(5)).
Opinions provided by treating sources are owed controlling weight if they are
“well-supported by medically acceptable clinical and laboratory diagnostic techniques” and are “not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2).
The regulations provide that an ALJ must provide “good reasons” for discounting the weight of a
treating source opinion. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Dr. Clayton began treating Plaintiff on April 24, 2013, prescribing him medication for
depression. (Tr. 432-33). Plaintiff reported that he had pain when he climbed ladders or stairs, but
that he could “walk as long as he need[ed] to on level ground without much of a problem.” (Tr.
432). In June 2013, Dr. Clayton noted that Plaintiff had a “minor tremor” for many years that was
not any worse than it had been over the past several years and noted that Plaintiff was “feeling much
better” on his anti-depressant medication. (Tr. 431). In July 2013, Dr. Clayton assessed Plaintiff
with fibromyalgia, arthralgia, back pain with history of sciatica, anxiety, depression, and tremor that
was probably familial. (Tr. 435). Plaintiff reported feeling more depressed. (Tr. 429, 435).
In October 2013, Plaintiff reported aches and pains with movement, and Dr. Clayton noted
that Plaintiff’s anti-depressant medication was somewhat helpful. (Tr. 445). In December 2013,
Dr. Clayton assessed Plaintiff with back pain with buttocks and leg pain. (Tr. 444). Plaintiff’s
examination reflects that Plaintiff had “some mild tenderness of the left paralumbar region and SI
joint,” and had negative straight leg raise. Id. Dr. Clayton “spent quite some time talking [with
Plaintiff] about diet, weight loss and increased activity levels,” and also prescribed a different antidepressant medication in addition to the one previously prescribed. (Tr. 444).
At Dr. Clayton’s request, Plaintiff had an MRI on January 31, 2014. (Tr. 446). The MRI
of the cervical spine showed that at the C5-6 level there was mild posterior central disc bulge and
that the “facets, central canal, and neutral foramina” were normal. Id. The MRI also showed at the
C5-6 level there was mild disc space narrowing and there was a posterior central right disc
protrusion with slight indentation of the thecal sac and cervical cord. Id. The MRI of the lumbar
spine revealed degenerative disc changes at T11-12 and degenerative disc and facet changes at L4-5
without evidence of a herniated disc. (Tr. 447). On November 20, 2104, Dr. Clayton noted that
Voltaren, prescribed by Plaintiff’s rheumatologist, was helping Plaintiff’s arthritis and fibromyalgia.
On April 29, 2015, Plaintiff visited Dr. Clayton, complaining of back, hip, knee, right
shoulder and right arm pain, and Plaintiff stated that he could not work because he could not sit or
stand for long periods of time and his pain made it difficult to concentrate. (Tr. 479). A physical
examination showed tenderness of the left knee and left hip, right shoulder, and neck region upon
range of motion and deep palpation. Id. Plaintiff also had low back pain to palpation with
diminished range of motion. Id. Otherwise, Dr. Clayton noted that Plaintiff’s physical examination
was “pleasant” and Plaintiff was not in distress. Id.
On April 29, 2015, Dr. Clayton completed a medical source statement and opined that
Plaintiff could lift less than ten (10) pounds occasionally, less than ten (10) pounds frequently, stand
and/or walk less than two (2) hours in an eight (8) hour workday, and sit with normal breaks less
than one (1) hour in an eight (8) hour workday. (Tr. 452). Pushing and pulling was limited in the
upper and lower extremities due to fibromyalgia with muscle tenderness, low back pain, right
shoulder pain, left knee pain, neck pain on range of motion and left hip pain on range of motion.
(Tr. 453). Dr. Clayton opined that Plaintiff would need to alternate sitting and standing to relieve
pain or discomfort due to these conditions, he would often experience pain severe enough to
interfere with attention and concentration, and he was mentally incapable of even “low stress jobs.”
Id. As to whether Plaintiff would need to take unscheduled breaks during an eight (8) hour workday,
Dr. Clayton answered, “can’t work.” Id. Dr. Clayton opined that Plaintiff’s legs should be elevated
with prolonged sitting and that his impairments would likely produce “all bad days,” meaning
Plaintiff “can’t work.” Id. Dr. Clayton further opined that Plaintiff should never climb, balance,
kneel, crouch or crawl due to fibromyalgia and osteoarthritis; that his reaching in all directions was
limited to occasionally due to pain in the right arm and shoulder; and that his speaking was limited
because under stress he would stutter. (Tr. 454). Environmental restrictions included avoiding all
exposure to humidity and wetness and avoiding concentrated exposure to extreme cold and heat,
noise, dust, vibration, fumes, odors, dust, gases, perfumes, solvents/cleaners, soldering fluxes,
cigarette smoke and chemicals. (Tr. 455).
The ALJ determined that Dr. Clayton’s opinion should be given little weight, stating:
As for the opinion evidence, the undersigned has considered the opinion of treating
physician Dr. Thomas Clayton (Exhibit 14F). The undersigned gives Dr. Clayton’s
opinion little weight. Dr. Clayton’s opinion that the claimant is limited to sitting less
than one hour per day and standing and walking less the two hours a day and
inability to perform any postural activities is clearly inconsistent with the claimant’s
reported daily activities, and the findings of Dr. Clayton and Dr. Kanagasegar
(Exhibits 7E, 9F, 16F, and 17F, and Hearing Testimony).
Plaintiff argues that Dr. Clayton’s medical opinion was contradicted only by a
non-examining doctor’s report that predated MRIs of Plaintiff’s back and neck and that the ALJ
improperly gave great weight to the reviewing doctor’s evaluation even though there was substantial
treatment after these evaluations. (Docket Entry No. 17, at 18). However, the ALJ considered
Plaintiff’s MRIs of his back and neck, included in exhibit 17F cited above, in conjunction with the
entire medical record. The ALJ specifically stated:
In 2014, a magnetic resonance image (“MRI”) of the cervical spine revealed a
posterior central right disc protrusion, and a MRI of the lumbar spine only revealed
degenerative disc changes at T-11-T 12 and degenerative disc and facet changes at
L4-5 without evidence of a herniated disc. Although a musculoskeletal examination
in 2015, revealed a decreased range of motion . . . in extension, flexion, and lateral
rotation of the cervical spine, tenderness in the paralumbar and lumbar spine, a right
positive straight leg raise, and restricted range of motion of the knees, it also revealed
normal muscle strength in upper and lower extremities; and treating physicians have
only recommended conservative treatments, and no surgeries have been
recommended nor mobility assistive devices prescribed (Exhibits 11F, 13F, 16F).
The ALJ further noted:
[A]n examination in 2015, in conjunction with Dr. Clayton’s medical source
statement, and in relation to his alleged impairments, only revealed tenderness of the
left knee, left hip, right shoulder, and neck region upon range of motion; low back
pain to deep palpation with diminished range of motion. Otherwise, the physical
examination was pleasant, and the claimant was in no distress (Exhibit 17F).
The ALJ also cited Plaintiff’s inconsistent statements as to disability, noting that Plaintiff’s
testimony that he only rested three to four days a week was “inconsistent with the treating progress
notes of treating physician Dr. Clayton and treating rheumatologist Dr. Kanagasegar as well as his
reported daily activities of driving on a regular basis, shopping twice a week, and going into town.”
(Tr. 59-60). The ALJ noted:
The claimant has also described daily activities that are not limited to the extent one
would expect, given the complaints of disabling symptoms and limitations. At one
point or another in the record (either in forms completed in connection with the
application and appeal, in medical reports or records, or in the claimant’s testimony),
[t]he claimant is reportedly still able to perform personal care needs, perform some
household chores, drive, help his wife prepare meals, shop in stores twice a week,
watch television, talk on phone with his son and daughter three to four times a week,
go to town twice a week, and go out alone. He has also completed necessary SSA
documents (Exhibit 7E and Hearing Testimony). Such activities are clearly not the
activities of an individual with totally disabling physical or mental conditions. His
ability to perform such a variety of daily activities tends to negate the credibility of
his subjective complaints. Furthermore, one would not reasonably anticipate that a
person who experiences the degree of symptoms alleged to be able to tolerate the
mental and physical demands, the level of concentration, or the amount of social
interaction, necessary to perform many of these activities.
As to the ALJ’s conclusion that Dr. Clayton’s opinion was inconsistent with the findings of
Dr. Kanagasegar, a specialist in rheumatology, the ALJ earlier noted that in February 2015, Dr.
Kanagasegar found “no diffuse soft tissue tender points for fibromyalgia.” (Tr. 58, 468). The ALJ
also noted that in March 2015 Plaintiff reported to Dr. Kanagasegar that he felt better when he took
Prednisone, and an examination revealed normal muscle sensation and normal strength in the upper
and lower extremities. (Tr. 58, 464).
Further, the ALJ noted that “treating physicians have only recommended conservative
treatments, and no surgeries have been recommended nor mobility assistive devices prescribed.”
(Tr. 58). See Branon v. Comm’r of Soc. Sec., 539 F. App’x 675, 678 (6th Cir. Oct. 2, 2013) (stating
that a “conservative treatment approach suggests the absence of a disabling condition”).
Accordingly, the Magistrate Judge concludes that the ALJ properly considered Dr. Clayton’s
opinion along with the medical record as a whole, properly concluded that Dr. Clayton’s opinion
was not well supported and was inconsistent with other evidence in the record, and properly
provided good reasons for giving Dr. Clayton’s opinion little weight.
2. The ALJ failed to give adequate reason for giving the reviewing physicians’
opinions great weight.
Plaintiff argues that the ALJ gave the reviewing physicians’ opinions great weight, even
though the opinions were given without the benefit of subsequent MRIs and that the ALJ did not cite
to any evidence in the record that supported the State agency physicians’ opinions. (Docket Entry
No. 17, at 20). Defendant contends that the ALJ did not need to cite the evidence as a whole that
was consistent with these opinions because the ALJ’s decision already set forth the reasoning in the
preceding paragraphs of the ALJ’s decision.
The ALJ gave “great weight” to the opinions of the State agency medical consultants and
found that they were consistent with the record as a whole. (Tr. 60). “‘State agency medical and
psychological consultants . . . are highly qualified physicians [and] psychologists . . . who are also
experts in Social Security disability evaluation,’ and whose findings and opinions the ALJ ‘must
consider . . . as opinion evidence.’” Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 712 (6th Cir.
2013) (quoting 20 C.F.R. § 404.1527(e)(2)(i)). While all medical opinions are evaluated as
discussed in 20 C.F.R. § 404.1527, opinions by consulting or non-treating doctors need not be
evaluated in accordance with the treating physician rules outlined by the Sixth Circuit. See Rudd
v. Comm’r of Soc. Sec., 531 F. App’x at 730 (citing 20 C.F.R. § 404.1527 and Barker v. Shalala, 40
F.3d 789, 794 (6th Cir. 1994)).
The ALJ is not required to reiterate the prior paragraphs in support of each conclusion. See
Crum v. Comm’r of Soc. Sec., No. 15-3244, 2016 WL 4578357, at *7 (6th Cir. Sept. 2, 2016)
(“Elsewhere in her decision, the ALJ laid out in detail the treatment records that showed that Crum
could return to normal work activity. . . . No doubt, the ALJ did not reproduce the list of these
treatment records a second time when she explained why Dr. Bell’s opinion was inconsistent with
this record. But it suffices that she listed them elsewhere in her opinion.”) (citing Forrest v. Comm’r
of Soc. Sec., 591 F. App'x 359, 366 (6th Cir. 2014)). “[B]efore an ALJ accords significant weight
to the opinion of a non-examining source who has not reviewed the entire record, the ALJ must give
‘some indication’ that he ‘at least considered’ that the source did not review the entire record. In
other words, the record must give some indication that the ALJ subjected such an opinion to
scrutiny.” Kepke, 636 F. App’x at 632 (citing Blakley, 581 F.3d at 409). Thus, an ALJ errs where
he adopts the findings of state agency physicians who have not examined the full record and the
reviewing court cannot tell whether the ALJ considered the full record. See Kepke, 636 F. App’x
at 632 (“Kepke misconstrues the Court's holding in Blakley v. Commissioner of Social Security as
providing a blanket prohibition on an ALJ’s adoption of a non-examining source opinion, where that
source has not reviewed the entire record. 581 F.3d 399, 409 (6th Cir.2009). The Court’s holding
in Blakley is far more limited . . . .”).
The ALJ provided a thorough summary of the medical records pre-dating and post-dating
the State agency providers’ opinions. The ALJ considered the 2014 MRIs and noted that they “only
revealed degenerative disc changes at T-11-T 12 and degenerative disc and facet changes at L4-5
without evidence of a herniated disc.” (Tr. 58). The ALJ noted that a 2015 musculoskeletal
examination revealed normal muscle strength in upper and lower extremities. Id. The ALJ also
noted that Plaintiff’s treating physicians only recommended conservative treatments, and no
surgeries were recommended nor mobility assistive devices prescribed. Id. The ALJ further noted
that in 2015 Plaintiff reported that he felt better when he took Prednisone, and an examination
revealed normal muscle sensation and normal strength in the upper and lower extremities. Id. Also,
Dr. Kanagasegar found no diffuse soft tissue tender points for fibromyalgia. Id. Thus, the
Magistrate Judge concludes that the ALJ’s reliance on the State agency examiners’ opinions is
supported by substantial evidence.
3. The ALJ erred in failing to find that tremors were a severe impairment.
Plaintiff argues that despite reports and testimony concerning tremors, the ALJ did not give
any restrictions in his hypotheticals concerning tremors.
At step two of the sequential evaluation process, a plaintiff bears the burden of showing that
a medically determinable impairment is severe and meets the twelve month durational requirement
of the Act. Harley v. Comm’r of Soc. Sec., 485 F. App’x 802, 803-04 (6th Cir. 2012). Symptoms
alone cannot constitute a “medically determinable impairment.” SSR 96-4p, 1996 WL 374187, at
*2 (S.S.A. July 2, 1996); see id. at *1 (“No symptom or combination of symptoms can be the basis
for a finding of disability, no matter how genuine the individual’s complaints may appear to be,
unless there are medical signs and laboratory findings demonstrating the existence of a medically
determinable physical or mental impairment.”). A “severe impairment” is “any impairment or
combination of impairments which significantly limits [the plaintiff’s] physical or mental ability to
do basic work activities.” 20 C.F.R. § 404.1520(c).3 In determining whether a plaintiff is disabled,
the Commissioner considers all of the plaintiff’s symptoms, including pain, and the extent to which
the plaintiff’s symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence. 20 C.F.R. § 404.1529(a). If the plaintiff is not doing substantial
gainful activity, the Commissioner considers the plaintiff’s symptoms, such as pain, to evaluate
Basic work activities are “the abilities and aptitudes necessary to do most jobs,” such as
“walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; [c]apacities for
seeing, hearing, and speaking; [u]nderstanding, carrying out, and remembering simple instructions;
[u]se of judgment; [r]esponding appropriately to supervision, co-workers and usual work situations;
and [d]ealing with changes in a routine work setting.” 20 CFR § 404.1521(b) (2015).
whether the plaintiff has a severe physical or mental impairment(s), and at each of the remaining
steps in the process. 20 C.F.R. § 404.1529(d).
Further, a diagnosis alone does not establish an impairment’s severity. Despins v. Comm’r
of Soc. Sec., 257 F. App’x 923, 930 (6th Cir. 2007) (“The mere existence of . . . impairments . . .
does not establish that [the plaintiff] was significantly limited from performing basic work activities
for a continuous period of time.”); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“[M]ere
diagnosis of arthritis . . . says nothing about the severity of the condition.”); Asbury v. Comm’r of
Soc. Sec., No. 14-CV-13339, 2016 WL 739658, at *3 (E.D. Mich. Feb. 25, 2016) (“[D]iagnoses
themselves generally do not establish disability; rather, disability is determined by the functional
impairments caused by the diagnosis or condition. . . . And a diagnosis of a condition, without more,
does not speak to the severity of the condition or the functional limitations associated with it.”). “‘In
considering whether a claimant has a severe impairment, an ALJ must not accept unsupported
medical opinions or a claimant’s subjective complaints.’” Wilkins v. Comm’r of Soc. Sec., No.
13-12425, 2014 WL 2061156, at *13 (E.D. Mich. May 19, 2014) (citations omitted). “[I]t is [the
plaintiff’s] burden to prove the severity of her impairments.” Higgs, 880 F.2d at 863 (citing Murphy
v. Sec’y of Health & Human Servs., 801 F.2d 182, 185 (6th Cir.1986)).
Finding that Plaintiff’s tremors were not a severe impairment, the ALJ stated:
The claimant has also alleged tremors; however, there is no objective support of
limitations to support it. Even though an examination in June 2013 revealed mild
fine tremors of the upper extremities, the claimant reported that his tremors were not
any worse than it had been for the last several years. Furthermore, in 2008, an
EMG/NCS test revealed normal results with no evidence of myopathy or neuropathy;
and in 2014, an electroencephalogram (“EEG”) revealed normal results.
(Tr. 54-55; 58, 271, 448).
The record reflects that in June 2013, Dr. Clayton noted that Plaintiff had a “mild tremor”
for many years and that ut was “not really any worse than it has been over the last several years.”
(Tr. 431). In July 2013, Dr. Clayton noted that Plaintiff’s physical examination showed that Plaintiff
had “some minimal resting tremor of the upper extremities” and assessed that Plaintiff’s tremor was
probably familial. (Tr. 429, 435). No doctor opined that Plaintiff had specific limitations due to
tremors. A lack of evidence in support of limitations supports the ALJ’s findings. See Seeley v.
Comm’r of Soc. Sec., 600 F. App’x 387, 390 (6th Cir. 2015) (“When doctors’ reports contain no
information regarding physical limitations or the intensity, frequency, and duration of pain
associated with a condition, this court has regularly found substantial evidence to support a finding
of no severe impairment.” (citation omitted)). The record reflects that the ALJ properly considered
Plaintiff’s tremors. Moreover, because Plaintiff’s “impairment was not determined to be ‘severe,’
the ALJ was not required to reference it in [the ALJ’s] hypothetical question to the vocational
expert.” Griffith v. Comm’r of Soc. Sec., 582 F. App'x 555, 565-66 (6th Cir. 2014) (citing Russell
v. Barnhart, 58 F. App’x 25, 30 (4th Cir.2003) (“Finally, the hypothetical question may omit
non-severe impairments, but must include those that the ALJ finds to be severe.”)); Brady v. Soc.
Sec. Admin., No. 3:14-CV-1977, 2017 WL 2376864, at *13 (M.D. Tenn. May 31, 2017).
Accordingly, this claim is without merit.
IV. CONCLUSION AND RECOMMENDATION
For the reasons explained above, the Magistrate Judge RECOMMENDS that Plaintiff's
motion for judgment on the administrative record (Docket Entry No. 16) be DENIED, and the
Commissioner’s decision be AFFIRMED. The parties have fourteen (14) days of being served with
a copy of this R&R to serve and file written objections to the findings and recommendation
proposed herein. A party shall respond to the objecting party’s objections to this R&R within
fourteen (14) days after being served with a copy thereof. Failure to file specific objections within
fourteen (14) days of receipt of this R&R may constitute a waiver of further appeal. Thomas v. Arn,
474 U.S. 140, 142, reh’g denied, 474 U.S. 111 (1986); see Alspaugh v. McConnell, 643 F.3d 162,
166 (6th Cir. 2011).
ENTERED this 6th day of December, 2017.
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?