Bush v. Social Security Administration
Filing
17
REPORT AND RECOMMENDATION: In light of the foregoing, the Magistrate Judge RECOMMENDS that Plaintiff's Motion for Judgment on the Administrative Record 12 be DENIED, and that the decision of the Commissioner be AFFIRMED. Signed by Magistrate Judge Joe Brown on 8/8/11. (tmw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BRIAN SCOTT. BUSH,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
To:
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Civil Action No. 3:10-cv-1128
Judge Nixon/Brown
The Honorable John T. Nixon, Senior Judge
REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 1383(c)(3) to obtain judicial review of the
final decision of the Commissioner of Social Security denying Plaintiff’s application for
Supplemental Security Income (“SSI”), as provided under Title XVI of the Social Security Act (the
"Act"), as amended. Currently pending before the Magistrate Judge is Plaintiff's Motion for Judgment
on the Administrative Record, Defendant's Response. (Docket Entries 12, 13, 14, 15, 16). The
Magistrate Judge has also reviewed the administrative record. (hereinafter "Tr.") (Docket Entry 10).
For the reasons set forth below, the Magistrate Judge RECOMMENDS the Plaintiff's Motion be
DENIED and that the decision of the Commissioner be AFFIRMED.
I. BACKGROUND
A. Procedural History
Plaintiff filed an application1 for SSI on June 18, 2007, with a protective filing date of May
1
Plaintiff previously filed an application for SSI on May 15, 2006, with a protective filing
date of April 19, 2006. (Tr. 102-09). That application was denied on June 27, 2006. (Tr.38-41).
1
29, 2006, alleging disability beginning December 31, 1999. (Tr. 7, 36, 37, 110-12). His claims were
denied initially and upon reconsideration. (Tr. 48-50, 54-55). Upon Plaintiff's request, a hearing was
conducted on April 28, 2010 before Administrative Law Judge ("ALJ") Roy J. Richardson. (Tr. 1833). The ALJ issued his decision denying Plaintiff's claims on June 30, 2010. (Tr. 4-14). Plaintiff's
request for the Appeals Council to review the ALJ's decision was denied on September 30, 2010,
rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1-3). Plaintiff filed this
action on November 30, 2010, seeking review of that decision pursuant to 42 U.S.C. § 1383(c)(3).
B. Plaintiff’s Age, Education, and Work Experience
Plaintiff was born on January 11, 1968, making him 42 years old as of the date of the ALJ's
opinion. (Tr. 14). He has a ninth grade education. (Tr. 21). He has no past relevant work. (Tr. 12). He
has not performed substantial gainful activity since May 29, 2007. (Tr. 9).
C. Plaintiff’s Medical Records
Plaintiff was admitted to the Psychiatric Hospital at Vanderbilt for detoxification on March
14, 2006. (Tr. 181). Physician Tianlai Tang, M.D., Ph.D., noted that
[Plaintiff] has been diagnosed with alcohol dependence. He was hospitalized in
1999 for 16 weeks for alcohol rehabilitation treatment. ... He says sometimes he
feels depressed, but has never had suicidal thoughts or other symptoms of
depression. His anxiety is high, and he sometimes has panic-like symptoms with
sweating and palpitations. He uses Xanax at 6 to 8 mg on a daily basis for the four
weeks. He also uses crack cocaine about two or three times per week, about $50
each time, since he was 18 years old. He also uses marijuana on an occasional
basis. ... The patient is self-employed. He is a professional painter. ... [He]
appeared to be anxious with mild hand tremor and fidgetiness. His thinking is
logical and goal directed and no psychotic symptoms noted. His mood is mildly
depressed. His anxiety is prominent. No psychosis is noticed.
(Tr. 184). In Plaintiff’s diagnostic formulation, dated on March 17, 2006, his Global Assessment
2
Functioning (GAF)2 was diagnosed as 35. Id. In Plaintiff’s final diagnosis, dated on March 25, 2006,
his GAF was diagnosed as 55. (Tr. 183). Plaintiff was discharged home on March 20, 2006. Id. Upon
discharge, Plaintiff opted not to have any follow-up appointment or intensive outpatient treatment
programs. Id. Dr. Tang recommended that Plaintiff attended AA meetings (90 meetings in 90 days)
and obtain a sponsor. Id.
On March 14, 2006, Steven J. White, M.D., at Vanderbilt University Medical Center
performed a physical examination on Plaintiff, due to Plaintiff's complaint of chest heaviness only
when actively withdrawing from benzodiazepines. (Tr. 188). Dr. Whites noted no physical limitations.
(Tr. 188-89).
Plaintiff alleges that he saw Sam Castellani, M.D., a treating psychiatrist, on July 8, 2006. (Tr.
227). Dr. Castellani stated that Plaintiff was compliant with treatment and making progress. However,
because Dr. Castellani was now in prison, Plaintiff was unable to obtain his treatment records from
Dr. Castellani. (Tr. 97).
On August 6, 2007, Plaintiff saw licensed clinical psychologist Kathryn B. Sherrod, Ph.D., for
a Disability Determination Services (DDS) psychological evaluation. (Tr. 192-196). Based on
observations, tests, and interview, Dr. Sherrod, in Functional Assessment, noted that:
2
GAF ratings are subjective determinations based on a scale of 1 to 100 of "the
clinician's judgment of the individual's overall level of functioning." American Psychiatric
Association, Diagnostic and Statistical Manual Mental of Mental Disorders (4th ed.2000) at 32.
A GAF score in the range 31-40 indicates "some impairment in reality testing or communication
OR major impairment in several areas such as work, school, family relations, judgment, thinking
or mood;" a GAF score in the range of 41-50 indicates "serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job);" a GAF score in the
range of 51-60 indicates "moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or coworkers)." Id. at 34.
3
Mr. Bush’s ability to understand and remember does not appear to be significantly
limited. His ability to sustain concentration appeared to moderately to severely
limited during his evaluation. He seemed overwhelmed at times by the tasks he
was given to do. He seemed to have difficulty thinking clearly. His social skills
appear to be severely limited due to his depression. Mr. Bush’s adaptive skills are
moderately to severely limited by his depressed mood. He said that he has to push
himself to take care of his personal needs but he lacks motivation to do household
chores. He said that he does not know what is wrong with him. Mr. Bush appears
to have the cognitive skills needed to manage his own funds, but because of the
severity of his depression, he is not likely to keep up with his financial affairs so
it appears prudent to appoint a payee to manage his funds.
(Tr. 196). Dr. Sherrod diagnosed Plaintiff's GAF as 45-50. (Tr. 195).
Plaintiff saw Dr. Grafton Thurman, on August 23, 2007, for a consultative examination
regarding Plaintiff's complaints of depression, anxiety, and joint pain. (Tr. 198-201). Dr. Thurman
opined that Plaintiff had no impairment-related physical limitations. (Tr. 201).
On August 27, 2007, Karen B. Lawrence, Ph.D., a State Disability Determination Services
medical consultant, completed a psychiatric review technique form ("PRTF") and a mental residual
functional capacity ("MRFC") assessment for Plaintiff. (Tr. 204-20). In Plaintiff's PRTF, Dr.
Lawrence opined that Plaintiff was moderately restricted in activities of daily living, had moderate
difficulties in maintaining social functions, and had moderate difficulties in maintaining concentration,
persistence, or pace. (Tr. 214). In Plaintiff's MRFC, Dr. Lawrence opined that Plaintiff was moderately
limited in eleven mental activities and not significantly limited in nine mental activities. (Tr. 218-19).
In her Functional Capacity Assessment, Dr. Lawrence noted:
[Plaintiff] can understand, remember and carry out simple one and two step,
detailed, and complex instructions, [w]ill have difficulty, but still can attend to,
persist with simple repetitive tasks, maintain simple schedule and routines.
[Plaintiff] will have difficulty but still can relate adequately to co-workers,
supervisors and general public and maintain appropriate social behavior.
[Plaintiff] can adapt to gradual, infrequent changes and set short term goals.
(Tr. 220).
On September 1, 2007, Plaintiff saw medical consultant Michael N. Ryan, M.D., for a DDS
4
Medical Consultant Analysis. Dr. Ryan noted that Plaintiff’s physical impairments singly and
combined were not severe, and Plaintiff ‘s symptoms for physical disability were not credible. (Tr.
225).
On September 17, 2007, James Allsbrooks, a vocational examiner, completed a Vocational
Analysis Work Sheet for Plaintiff. (Tr. 144-47). Mr. Allsbrooks found that Plaintiff could understand,
remember, and carry out simple, detailed, and complex instructions. (Tr. 147). Mr. Allsbrooks also
found that Plaintiff would have difficulty, but could still attend to and persist for simple tasks; would
have difficulty, but could still relate adequately to co-workers, supervisors, and the general public;
could adapt to gradual, infrequent change, and could set short term goals. Id.
On November 17, 2009, Plaintiff saw Kenneth Anchor, Ph.D. ABPP, a board-certified
disability consultant and clinical psychologist, for a vocational and psychological evaluation. (Tr. 22836). Dr. Anchor noted that Plaintiff was referred to him by Plaintiff’s attorney. (Tr. 229). Based on
behavioral observations, tests, and Plaintiff’s medical records, Dr. Anchor noted that:
[Plaintiff] achieved an I.Q. test score of 84 which placed him in the low average
range of intellectual functioning at about the 15th percentile of the general
population. This may be a somewhat conservative estimate of his true abilities. ...
Personality test findings for [Plaintiff] indicate a psychodiagnostic impression of
impulse control disorder with secondary features of chronic anxiety and
depression.... Social skills are seriously impaired. Credibility findings were within
normal limits. Malingering, symptom magnification, secondary gains and other
manifestations of obstructiveness were ruled out by these test results. ...
[Plaintiff’s] current Global Assessment of Functioning rating of 47 (serious
impairment) places him in the clinically remarkable range of overall
psychological maladjustment. These test data considered with prior evaluations
indicate a marked decline in functioning especially in recent years. ... [Plaintiff]
will experience major difficulties in satisfactorily sustaining many types of fulltime gainful employment in an unrestricted capacity such that he would fulfill
minimal employer expectations without first achieving significant improvement.
... An individualized program of intensive individual and group psychotherapy is
recommended.
(Tr. 228-34).
5
D. The Hearing Testimony
At his administrative hearing, Plaintiff testified that he was divorced and had a nine-year old
child, for whom he pays child support. (Tr. 21). He is unable to work due to depression and is
supported financially by his mother.(Tr. 20-22). He is 6' 2" tall and weighs 375 pounds. (Tr. 25). He
previously took medication for his depression, which did not offer him any relief. (Tr. 27). He
underwent detoxification in 2006 due to cocaine abuse. (Tr. 24). He lives alone in a house but does
not do yard work, housework, or laundry because he has no "desire to do anything." (Tr. 23). He
drives occasionally to drug stores. (Tr. 24). He has no problems bathing every day. (Tr. 25).
Ms. Susan Brooks, the Vocational Expert ("VE"), testified at the hearing. (Tr. 29). The ALJ
asked her whether a hypothetical claimant could find work if that claimant had no exertional
limitations but, due to mental limitations, was limited to understanding, remembering, and carrying
out routine, one step instructions, could respond appropriately to supervisors and co-workers but was
not asked to make independent decisions, and was not required to engage in more than incidental
interpersonal contact. Id. Ms. Brooks responded that such an individual could perform a number of
jobs, including the jobs of packers and packagers, cleaner, laundry worker, and sewing machine
operator. (Tr. 29-30). Plaintiff's attorney asked Ms. Brooks to opine on the ability of this hypothetical
person to obtain employment if he was also markedly limited in his ability to sustain attention and
concentration and persistence and in his ability to engage appropriately in social activities that would
include accepting supervision and working with or near co-workers (Tr. 31). The ALJ stated that he
did not need vocational expert testimony because such a person who was so limited would meet a
listing under the agency's regulations. Id. Plaintiff's attorney then asked Ms. Brooks to consider
whether a person with a GAF rating of 47 would be able to find competitive employment. (Tr. 32).
The ALJ disallowed the question because it was a medical question beyond the expertise of the
6
vocational expert. Id.
E. The ALJ’s Findings of Facts and Conclusion
In his written decision, dated on June 3, 2010, the ALJ made the following findings of fact and
conclusions of law:
1.
The claimant has not engaged in substantial gainful activity since May 29, 2007, the
application date (20 CFR 416.971 et seq.).
2.
The claimant has the following severe impairments: depression and anxiety (20 CFR
416.920(c)).
3.
The claimant does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4.
After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform a full range of work at all exertional
levels but with the following nonexertional limitations. The claimant would be able to
understand, remember, and carry out routine step instructions and respond
appropriately to supervisors and coworkers in jobs that do not require independent
decision making. The claimant has the mental capacity to perform work where
interpersonal contact is only incidental to work performance.
5.
The claimant has no past relevant work (20CFR 416.965).
6.
The claimant was born on January 11, 1968 and was 39 years old, which is defined as
a younger individual age 18-49, on the date the application was filed (20 CFR
416.963).
7.
The claimant has a limited education and is able to communicate in English (20 CFR
416.964).
8.
Transferability of job skills is not an issue because the claimant does not have past
relevant work (20 CFR 416.968).
9.
Considering the claimant's age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that
the claimant can perform (20 CFR 416.969 and 416.969(a)).
10.
The claimant has not been under a disability, as defined in the Social Security Act,
since May 29, 2007, the date the application was filed (20 CFR 416.920(g)).
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(Tr. 9-13).
II. APPLICABLE LEGAL STANDARDS
A. Standard of Review
This 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). The purpose
of this review is to determine (1) whether substantial evidence exits 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. Secretary, 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence” means “such relevant evidence as a reasonable mind would accept as
adequate to support the conclusion.” Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). It has been further quantified as “more than a mere
scintilla of evidence, but less than a preponderance.” Bell v. Commissioner, 105 F.3d 244, 245 (6th
Cir. 1996). Even if the evidence could also support a difference 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)). However, if the record was not considered as a whole,
the Commissioner’s conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985).
B. Proceedings at the Administrative Level
The Claimant has 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 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). At
the administrative level of review, the claimant’s case is considered under a five-step sequential
evaluation process as follows:
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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” impairments3 or its equivalent; 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.
Once the claimant establishes a prima facie case of disability, it becomes the
Commissioner’s burden to establish the claimant’s ability to work by providing the
existence of a significant number of jobs in the national economy which the claimant
could perform, given his or her age, experience, education, and residual functional
capacity.
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
In determining residual functional capacity (RFC) for purposes of the analysis required at steps
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 non-severe. See 42 U.S.C.
§ 423(d)(2)(B).
III. LEGAL ANALYSIS
Plaintiff presents seven alleged errors for review:
1.
The ALJ erred by not finding that Plaintiff meets the requirements of Listing 12.04 and
Listing 12.06.
2.
3
The ALJ erred by finding that Plaintiff has the RFC to perform a full range of work at
The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, Appendix 1.
9
all exertional levels.
3.
The ALJ erred by failing to consider all the evidence before him.
4.
The ALJ erred in not properly considering Plaintiff’s obesity and its effects on his
ability to work.
5.
The ALJ committed reversible error in failing to comply with Social Security Ruling
96-7p and 20 C.F.R. § 416.929 in evaluating Plaintiff’s subjective limitations.
6.
The ALJ committed reversible error in failing to correctly evaluate Plaintiff’s mental
conditions in accordance with 20 C.F.R. §§ 416.920a, and 416.945(c).
7.
The ALJ erred in relying on the testimony of the vocational expert.
(Docket Entry 12-1, Plaintiff’s Brief in Support of Motion for Judgment on the Administrative Record
(“Plaintiff’s Brief”), 11-24). Accordingly, Plaintiff maintains that, pursuant to 42 U.S.C. § 405(g), the
Commissioner's decision should be reversed. Id. at 24. Or in the alternative, Plaintiff’s matter should
be remanded for further consideration by a new ALJ. Id. at 25.
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). “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. Secretary, 17 F.3d 171, 176 (6th Cir. 1994);
10
see also Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994).
The Magistrate Judge will combine some of the Plaintiff’s alleged errors and discuss as
follows:
A.
The ALJ Properly Decided that Plaintiff Did Not Meet the Requirements of
Listing 12.04 and Listing 12.06.
Plaintiff argues that the substantial weight of the evidence reflects that his affective disorder
satisfies the medical criteria of Listing 12.04, and his anxiety-related disorders meet the requirements
of Listing 12.06. The burden of proof for establishing that an impairment meets or equals the
requirements of a listed impairment rests with the claimant. See Foster v. Halter, 279 F.3d 348, 354
(6th Cir. 2001). To meet a listed impairment, a claimant must satisfy all of the criteria in the listing.
See Roby v. Comm'r of Soc. Sec., 48 Fed. Appx. 532, 536 (6th Cir. 2002) (citing Hale v. Secretary of
Health & Human Servs., 816 F.2d 1078, 1083 (6th Cir. 1987)). "If all the requirements of the listing
are not present, the claimant does not satisfy that listing." Berry v. Commissioner, 34 F. App'x 202,
203 (6th Cir. 2002). “An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967
(1990). "It is insufficient that a claimant comes close to satisfying the requirements of a listed
impairment." Elam ex rel. Golay v. Commissioner, 348 F.3d 124, 125 (6th Cir. 2003).
In order to meet either listing 12.04 or listing 12.06, Plaintiff must show that he satisfies the
criteria in both Paragraph A and B of those listings. See 20 C.F.R. pt. 404, subpt. P, app.1 §§ 12.04,
12.06. To satisfy the B requirements of Listings 12.04 and 12.06, Plaintiff has to establish at least two
of the following limitations: (1) marked restriction of activities of daily living; (2) marked difficulties
in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence,
or pace; or (4) repeated episodes of decompensation, each of extended duration. Id. Alternatively,
11
under listing 12.04, or 12.06 a claimant may satisfy the requirements of a listed mental impairment
if he has a medically substantiated mental impairment and functional limitations that meet the “C”
criteria of the listing. The “C” criteria for listing 12.04 requires a medically documented history of a
mental impairment and one of the following: (1) repeated episodes of decompensation, each of
extended duration; (2) a residual disease that has resulted in such marginal adjustment that even
minimal increase in mental demands or change in the environment would be predicted to cause the
individual to decompensate; or (3) a current history of 1 or more years' inability to function outside
a highly supportive living arrangement with a need for such an arrangement to continue. 20 C.F.R.
pt. 404, subpt. P, app. 1 § 12.04. For listing 12.06, the “C” criteria is met if the mental impairment
resulted in the “complete inability to function independently outside the area of one's home.” 20
C.F.R. pt. 404, subpt. P, app. 1 § 12.06.
In the present case, the ALJ found that Plaintiff did not satisfy the B or C criteria of Listings
12.04 and 12.06. (Tr. 9.) In so finding, the ALJ noted:
In activities of daily living, the claimant has mild restriction. ... However, through
at least 2009, the claimant has been able engage in activities of his choice, such
as driving, reading, watching television, and spending time running errands with
his girlfriend (Exhibit 9F).
In social functioning, the claimant has moderate difficulties. The claimant
reportedly isolates himself from others, but the evidence shows that he has had
regular contact with family members and his girlfriend.
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant is able to engage in activities, such as reading, watching
television, and driving, which require some degree of concentration and attention.
As for episodes of decompensation, the claimant has experienced no episodes of
decompensation, which have been of extended duration.
Because the claimant’s mental impairments do not cause at least two “marked”
limitations or one “marked” limitation and “repeated” episodes of
decompensation, each of extended duration, the “paragraph B” criteria are not
12
satisfied.
The undersigned has also considered whether the “paragraph C” criteria are
satisfied. In this case, the evidence fails to establish the presence of the “paragraph
C” criteria.
(Tr. 9-10).
The record shows that the ALJ's findings are supported by substantial evidence. On August
6, 2007, a licensed clinical psychologist Kathryn B. Sherrod, Ph.D., completed a DDS psychological
evaluation for Plaintiff, in which Plaintiff's ability to understand and remember did not appear to be
significantly limited; Plaintiff's ability to sustain concentration appeared to moderately to severely
limited; Plaintiff's social skills appear to be severely limited due to his depression; and Plaintiff's
adaptive skills are moderately to severely limited by his depressed mood. (Tr. 196). On August 27,
2007, a State Disability Determination Services medical consultant, Karen B. Lawrence, Ph.D.,
completed a PRTF and a MRFC assessment for Plaintiff, in which Plaintiff was found to be
moderately restricted in activities of daily living, to have moderate difficulties in maintaining social
functions, and to have moderate difficulties in maintaining concentration, persistence, or pace. (Tr.
214). On September 17, 2007, a vocational examiner, James Allsbrooks, completed a Vocational
Analysis Work Sheet for Plaintiff, in which Mr. Allsbrooks checked all of the relevant boxes
indicating that Plaintiff's abilities in sustained concentration and persistence, social interaction, and
adaption were moderately limited. (Tr. 144). On November 17, 2009, Plaintiff's own attorney referred
Plaintiff to see Kenneth Anchor, Ph.D. ABPP, a board-certified disability consultant and clinical
psychologist, for a vocational and psychological evaluation, in which Dr. Anchor also noted that
Plaintiff drove himself to the evaluation, read the newspaper, watched TV, used the phone, went on
errands with his girlfriend, and helped with light house chores including taking out the garbage,
putting gas in the car, bring in the mail and doing dishes. The ALJ’s findings that Plaintiff had
13
moderate, but not marked, difficulties in his activities of daily living , in social functioning, and in
concentration, persistence or pace were consistent with the evidence of Record. Morever, there is
nothing in the record to indicate that Plaintiff suffered repeated episodes of decompensation Without
evidence of repeated episodes of decompensation or evidence of a second "marked" impairment, the
ALJ properly concluded that the record did not establish that Plaintiff met or medically equaled
Listing 12.04 or 12.06. As has been noted, the reviewing court does not substitute its findings 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. The ALJ's decision that Plaintiff's impairments did not meet
or medically equal a Listing was properly supported by substantial evidence; the ALJ's decision,
therefore, must stand.
B.
The ALJ Properly Found that Plaintiff Had the RFC to Perform a Full Range
of Work at All Exertional Levels.
Plaintiff maintains that the ALJ erred in concluding that he had the residual functional capacity
to perform a full range of work at all exertional levels. (Docket Entry 12-1, Plaintiff's Brief, 14).
"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 C.F.R. Pt. 404,
Subpt. P, App. 2 § 200.00(c). With regard to the evaluation of physical abilities in determining a
claimant's Residual Functional Capacity, 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 functions, such as reaching, handling, stooping or
14
crouching), may reduce your ability to do past work and other work
20 C.F.R. § 404.1545(b).
1. Plaintiff’s Subjective Complaints
Plaintiff first argues that the ALJ did not appropriately address his complaints of pain and
resulting functional limitations. (Docket Entry 12-1, Plaintiff's Brief, 14, 19-20). Plaintiff alleges that
he had joint pain for the last 15 years in his neck, shoulders, elbows, wrists, knees, ankles, and feet.
Id. Plaintiff also alleges that he is obese and has redness, tenderness, and swelling in his joints. Id.
The Agency's rules governing disability determination establish a two-step process for
evaluating pain. See 20 C.F.R. § 416.929, SSR 96–7p. The Sixth Circuit has set forth the following
criteria for assessing a plaintiff's allegations of pain:
[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. Secretary, 801 F.2d 847, 853 (6th Cir. 1986) (quoting S.Rep. No. 466, 98th Cong., 2d Sess.
24); see also 20 C.F.R. §§ 404.1529, 416.929 (“[S]tatements 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) (“[T]hough Moon alleges fully disabling and debilitating symptomology, 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, “allegations of pain ... do not constitute
a disability unless the pain is of such a debilitating degree that it prevents an individual from engaging
in substantial gainful activity.” Bradley v. Secretary, 862 F.2d 1224, 1227 (6th Cir. 1988).
When analyzing the claimant's subjective complaints of pain, the ALJ must also consider the
15
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 C.F.R. §
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.
Commissioner, 127 F.3d 525, 531 (6th Cir. 1997); Blacha v. Secretary, 927 F.2d 228, 230 (6th Cir.
1990); Kirk v. Secretary, 667 F.2d 524, 538 (6th Cir. 1981).
The ALJ, when evaluating the entirety of the evidence, is entitled to weigh the objective
medical evidence against Plaintiff's subjective claims of pain 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. Secretary, 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 (internal citation omitted); Siterlet v.
Secretary, 823 F.2d 918, 921 (6th Cir. 1987)). Despite that deference, an ALJ's assessment of a
claimant's credibility must be supported by substantial evidence. Walters 127 F.3d at 531.
A review of the ALJ's opinion in the instant case reflects that the ALJ applied the appropriate
Agency and legal standards in assessing Plaintiff’s RFC due to his alleged symptoms. Substantial
evidence supports the ALJ's assessment of Plaintiff's credibility. While the ALJ found that Plaintiff's
medically determinable impairments could reasonably be expected to cause the alleged symptoms, he
16
found that Plaintiff’s statements concerning the intensity, persistence and limiting effects of those
symptoms were not credible to the extent they were inconsistent with the Plaintiff’s RFC assessment.
(Tr. 11). In reaching his findings, the ALJ considered the requisite factors mandated by 20 CFR
416.929 and SSRs 96-4p and 96–7p, including the objective medical evidence, the effectiveness of
Plaintiff's medication at relieving his pain, and Plaintiff’s daily activities. After considering the
objective medical evidence, the ALJ reported that "[w]hile it is noted the claimant was hospitalized
with psychiatric complaints a few months before his intial application for benefits was filed, it is also
noted that his primary diagnosis was substance induced mood disorder with alcohol dependence and
cocaine/marijuana abuse." (Tr. 11). With respect to Plaintiff physical limitations, the ALJ noted that:
the findings of the consultative examiner, Dr. Grafton Thurman, who following
an August 23, 2007 evaluation opined "the claimant has no impairment-related
physical limitations" in combination with his very limited medical history, despite
having been insured through 2007, convinces the undersigned the claimant has no
physical restrictions.
(Tr. 12).
The ALJ also considered Plaintiff’s daily activities. See Blacha, 927 F.2d at 231
(acknowledging that “an ALJ may consider household and social activities in evaluating complaints
of disabling pain”); see also 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(I). The ALJ noted that “in
contrast to the very restricted activities of daily living reported during the hearing, the claimant in
August 2007, two months after his current application for benefits was filed, reported engaging in
activities of his choice, including sleeping until he wants to get up, making his own lunch and dinner,
and watching television.” (Tr. 11). Additionally, the ALJ also noted that there was conflicting
information regarding Plaintiff’s work history, “telling one examining source he had never been fired
from a job and another he was fired after 12 years of employment.” (Tr. 12). In sum, the Magistrate
Judge finds that the ALJ properly evaluated Plaintiff's credibility and the ALJ's findings were based
17
upon substantial evidence.
2. Plaintiff’s GAF
Plaintiff also argues that his low GAF scores has indicated that he was unable to engage in
substantial gainful activity. (Docket Entry 16, Plaintiff’s Reply Brief, 1-2). Plaintiff also alleges that
he did not receive a full and fair hearing because he was not allowed to question the VE regarding the
ability to perform the listed jobs with a GAF score of 47. Id. at 2.
Notably, the mental disorder Listings do not reference GAF scores. Thus, an individual's GAF
does not determine whether the requisite level of severity has been met for the purposes of Social
Security disability. DeBoard v. Comm'r of Soc. Sec., 211 Fed. App'x. 411, 415 (6th Cir. 2006). A GAF
score represents a clinician's subjective determination of an individual's overall ability to function.
Wesley v. Comm'r of Soc. Sec., 2000 WL 191664, at *3 (6th Cir. Feb.11, 2000) (citing Diagnostic &
Statistical Manual of Mental Disorders 30 (4th ed.1994)). GAF scores "are not raw medical data."
Kennedy v. Astrue, 247 Fed. Appx. 761, 766 (6th Cir. 2007). A GAF score does not necessarily have
any "bearing on the subject's social and occupational functioning." Kornecky v. Comm'r of Soc. Sec.,
2006 WL 305648, at * 13-* 14 (6th Cir. Feb.9, 2006). Furthermore, there is no statutory or regulatory
authority requiring the ALJ to use the GAF score. Id.; Howard v. Comm'r of Soc. Sec., 276 F.3d 235,
241 (6th Cir. 2002) (ALJ's failure to refer to GAF score did not make his RFC analysis unreliable).
As the GAF score characterizes Plaintiff's overall mental health rather than his ability to work, the ALJ
was not required to factor the GAF score into his assessment of functional capacity.
Morever, the record reflects that the ALJ considered that Plaintiff's GAF of 55, calculated on
March 25, 2006, 6 days before he was discharged from the Psychiatric Hospital at Vanderbilt, was
indicative of moderate to serious symptoms. (Tr. 11). However the ALJ noted:
his primary diagnosis was substance induced mood disorder with alcohol
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dependence and cocaine/marijuana abuse ...This evidence, the fact when the
claimant was discharged 6 days later he was assessed with social, occupational,
and psychological functioning (GAF) of 55,... and information provided by his
treating psychiatrist, Dr. Sam Castellan, on August 8, 2006, when he reported
with treatment the claimant was making progress, do not support a conclusion the
claimant was precluded from working commencing May 14, 2006, the date his
initial application for benefits was filed.
(Tr. 11). The ALJ also considered Plaintiff's GAF of 45 to 50, calculated by Kathryn B. Sherrod, PhD.,
on August 6, 2007, and Plaintiff's GAF of 47, calculated by Kenneth Anchor, Ph.D., on November 17,
2009. The ALJ noted that those GAF assessments, which were based in large part on Plaintiff's
subjective complaints were inconsistent with his very limited treatment history and his acknowledged
daily activities. (Tr. 12). The ALJ may reject the opinion of a physician “where such is unsupported
by the medical record, merely states a conclusion, or is contradicted by substantial medical evidence."
Edwards v. SSA, 654 F.Supp.2d 692, 702 (W.D.Mich. 2009) (citing, inter alia, Cutlip v. HHS, 25 F.3d
284, 286-87 (6th Cir. 1994)). Accordingly, the ALJ did not commit any error in the evaluation of
Plaintiff’s GAF in determining a Plaintiff’s Residual Functional Capacity.
Nonetheless, the Sixth Circuit has repeatedly held that GAF scores in the mid 30s to mid 50s
are consistent with the ability to perform simple, unskilled, low stress work. E.g., Smith v. Comm'r of
Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007) (holding that a GAF score in the high 40s to mid 50s did
not preclude the ability to work); Smith v. Comm'r of Soc. Sec., 74 Fed. App'x. 548, 553 (6th Cir.
2003) (determining that plaintiff with a GAF score of 48 was ineligible for disability benefits);
Nierzwick v. Comm'r of Soc. Sec., 7 Fed. App'x. 358, 363 (6th Cir. 2001) (finding that plaintiff was
able to work, despite a GAF score of 35). In the present case, Plaintiff’s GAF scores of 35 to50 lie
exactly within the mid 30s to mid 50s range, which indicates the ability to perform simple, unskilled,
low stress work.
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3. VE Testimony at the Plaintiff’s Hearing
Plaintiff alleges that he did not receive a full and fair hearing because he was not allowed to
question the VE regarding the ability to perform the listed jobs with a GAF score of 47. (Docket Entry
12-1, Plaintiff’s Brief, 21-22). As the Sixth Circuit Court of Appeals has held, an ALJ is not obligated
to consider a VE's response to questions based on information that the ALJ has decided is not
supported by substantial evidence or is not credible. See Felisky v. Bowen, 35 F.3d 1027, 1036 (6th
Cir. 1994). “It is well established that the hypothetical questions need only incorporate ... those
limitations which the ALJ has accepted as credible.” Infantado v. Astrue, 263 F. App'x 469, 476-77
(6th Cir. 2009); Grifeth v. SSA, 217 F. App'x 425, 429 (6th Cir. 2007) (“An ALJ is not required to
accept a claimant's subjective complaints, and ‘can present a hypothetical to the VE on the basis of
his own assessment if he reasonably deems the claimant's testimony to be inaccurate.’ ”) (quoting
Jones v. SSA, 336 F.3d 469, 476 (6th Cir. 2003))); see also Lusk v. SSA, 106 F. App'x 405, 409 (6th
Cir. 2004) (agreeing with district court that “an ALJ need not consider a VE's answer to a hypothetical
that he later determines is not supported by the evidence”, in that case his ultimate determination that
claimant's coronary problems did not meet or equal any of the impairments listed in Part 404);
Hall-Thulin v. SSA, No. 96-1940, 110 F.3d 64, 1997 WL 144237, *2 (6th Cir. Mar.27, 1997) (“The
ALJ did not have to accept Hall-Thulin's assertion that her medication makes her so drowsy that it
creates an additional restriction on her ability to perform sedentary work. There was no requirement
that the ALJ's hypothetical question to the VE reflect this unsubstantiated complaint.”). Accordingly,
in the case at hand, the ALJ was not required to rely on the VE's response to hypothetical limitations
that were not reflected in the ALJ's RFC determination.
As discussed in detail above, the ALJ, after evaluating all of the objective medical evidence
of record and the claimant's level of activity, determined that Plaintiff had the Residual Functional
20
Capacity to perform a full range of work at all exertional levels. (Tr 10). The ALJ properly evaluated
the evidence in reaching this Residual Functional Capacity determination, and the Regulations do not
require more. Moreover, the ALJ's determination that Plaintiff had the Residual Functional Capacity
to perform a full range of work at all exertional levels is supported by the evidence that he "has been
able to maintain close ties with family, date, cook, read, watch television, and drive." (Tr 12). Because
there is substantial evidence in the record to support the ALJ's Residual Functional Capacity
determination, the ALJ's determination must stand.
C.
The ALJ Properly Considered All the Evidence before Him.
Plaintiff claims that the ALJ failed to consider all medical evidence with regard to Plaintiff's
weakness. Specifically, Plaintiff alleges that the ALJ erred by only giving minimal weight to the
assessments of Dr. Anchor, who indicated that Plaintiff had serious symptoms. (Docket Entry 12-1,
Plaintiff’s Brief, 17).
An ALJ must weigh medical opinions in the record based on certain factors. 20 C.F.R. §§
404.1527(d); 416.927(d). In determining how much weight to afford a particular opinion, an ALJ must
consider: 1) examining relationship; 2) treatment relationship-length, frequency, nature and extent;
3) supportability; 4) consistency; and 5) specialization. Id.; Ealy v. Comm'r of Soc. Sec., 594 F.3d 504,
514 (6th Cir. 2010).
The Social Security regulations provide that a treating physician's opinion is entitled to
controlling weight if that opinion is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.”
20 C.F.R. § 416.927(d)(2); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Even
if the treating physician's opinion is not entitled to "controlling weight," there is nevertheless a
rebuttable presumption that it deserves "great deference" from the ALJ. Rogers v. Comm'r of Soc. Sec.,
21
486 F.3d 234, 242 (6th Cir. 2007). Importantly, the ALJ must give "good reasons" for the weight it
gives a treating physician's opinion. Id.
When controlling weight is assigned to the medical opinion of the “treating source” the
Administrative Law Judge is not required to assign weight to medical opinions from examining and/or
non-examining sources. 20 C.F.R. §§ 404.1527(d) and (f)(ii).While it might be ideal for an ALJ to
articulate his reasons for crediting or discrediting each medical opinion, it is well settled that: “[a]n
ALJ can consider all the evidence without directly addressing in his written decision every piece of
evidence submitted by a party.” Kornecky v. Commissioner of Social Security, 167 Fed.Appx. 496,
508 (6th Cir. 2006) Nor must an ALJ make explicit credibility findings as to each bit of conflicting
testimony, so long as his factual findings as a whole show that he implicitly resolved such conflicts.
Id. (Citing Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999).
A "treating source" is a physician, psychologist, or other "acceptable medical source" who
provides the claimant, or has provided the claimant, with medical treatment or evaluation and who has,
or has had, an ongoing treatment relationship with the claimant. 20 C.F.R. § 404.1502. The Sixth
Circuit has held that as a matter of law, a single examination does not suffice to create a treating
relationship. Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 506 (6th Cir. 2006). (citing White
v. Barnhart, 415 F.3d 654, 658 (7th Cir.2005)). “Indeed, depending on the circumstances and nature
of the alleged condition, two or three visits often will not suffice for an ongoing treatment
relationship.” Kornecky, 167 Fed.Appx. at 506 (citing Cunningham v. Shalala, 880 F.Supp. 537, 551
(N.D.Ill.1995) (where physician saw claimant five times in two years, it was ‘hardly a foregone
conclusion’ that his opinion should be afforded great weight)); see also Boucher v. Apfel, No. 99-1906,
2000 WL 1769520, at *9 (6th Cir. Nov. 15, 2000) (although physician examined claimant three times
(once each in 1990, 1992, and 1992), he was not entitled to treating-physician status).
22
In this instant case, Dr. Anchor examined Plaintiff one time, on November 17, 2009, at the
request of his disability attorney. (Tr. 228-36). Accordingly, Dr. Anchor was not a treating physician,
and the ALJ was not required to assign weight to his opinion. In turn, the ALJ was not obligated to
make explicit credibility findings as to Dr. Anchor’s report. Treating physician or not, the fact remains
that the ALJ did review Dr. Anchor's opinion and discounted his opinion because it was based in large
part on Plaintiff’s subjective complaints, and was inconsistent with Plaintiff’s very limited treatment
history and his acknowledged daily activities. (Tr. 12). As noted above, the ALJ was entitled to
properly discount Dr. Anchor's opinion as it was based upon Plaintiff's subjective complaints.
Edwards, 654 F.Supp.2d at 702; see also Gilmore v. Astrue, No. 2:10–00054, 2011 WL 2682990, at
*10 (M.D. Tennessee, July 11, 2011).
D.
The ALJ Did Not Error as to Plaintiff’s Alleged Obesity Claim.
Plaintiff alleges that both Dr. Sherrod and Dr. Thurman noted that Plaintiff was obese, but
the ALJ did not consider Plaintiff’s obesity at any step of the sequential evaluation as required by
SSR 02-1p.
SSR 02–1p instructs how to identify obesity as a medically determinable impairment:
When establishing the existence of obesity, we will generally rely on the
judgment of a physician who has examined the claimant and reported his or her
appearance and build, as well as weight and height. Thus, in the absence of
evidence to the contrary in the case record, we will accept a diagnosis of obesity
given by a treating source or by a consultative examiner. However, if there is
evidence that indicates that the diagnosis is questionable and the evidence is
inadequate to determine whether or not the individual is disabled, we will contact
the source for clarification, using the guidelines in 20 CFR 404.1512(e) and
416.912(e).
When the evidence in a case does not include a diagnosis of obesity, but does
include clinical notes or other medical records showing consistently high body
weight or BMI, we may ask a medical source to clarify whether the individual has
obesity. However, in most such cases we will use our judgment to establish the
presence of obesity based on the medical findings and other evidence in the case
record, even if a treating or examining source has not indicated a diagnosis of
23
obesity. Generally, we will not purchase a consultative examination just to
establish the diagnosis of obesity.
When deciding whether an individual has obesity, we will also consider the
individual's weight over time. We will not count minor, short-term weight loss.
We will consider the individual to have obesity as long as his or her weight or
BMI shows essentially a consistent pattern of obesity. (See question 13 for a
discussion of weight loss and medical improvement.)
Finally, there are a number of methods for measuring body fat and, if such
information is in a case record, we will consider it. However, we will not purchase
such testing. In most cases, the medical and other evidence in the case record will
establish whether the individual has obesity.
TITLES II AND XVI: EVALUATION OF OBESITY, SSR 02–1p, 2000 WL 628049, ––––3–4
[footnote 3 omitted].
It is up to the claimant to furnish medical and other evidence which the “Social Security
Administration can use to reach conclusions about [a claimant's] medical impairment(s) and its effect
on [his] ability to work on a sustained basis.” 20 CFR § 404.1512(a). Moreover, a claimant must also
provide enough evidence of the effect obesity has on his ability to work. Young v. Commissioner of
Social Sec., No. 3:09 CV 1894, 2011 WL 2182869 (N.D. Ohio, June 6, 2011). The Court in Cranfield
v. Comm'r of Soc. Sec., held that
Ms. Cranfield provided no evidence that obesity affected her ability to work.
Moreover, 20 CFR § 404.1512(a) required Ms. Cranfield to “furnish medical and
other evidence that [the SSA] can use to reach conclusions about [her] medical
impairment(s) and ... its effect on [her] ability to work on a sustained basis.” See
20 CFR § 404.1512(a). Ms. Cranfield did not satisfy this requirement with respect
to an obesity claim. Thus, the ALJ and the district court had no obligation to
address Ms. Cranfield's obesity.
79 Fed. Appx. 852, 857-58 (6th Cir. 2003).
In the present case, Plaintiff did not allege obesity as an impairment. Plaintiff did not complain
of obesity in his testimony before the ALJ or in his Disability Report Forms. (Tr. 20-32, 34-37). Nor
did he furnish any evidence as to the effect obesity had on his ability to work. Indeed, Dr. Thurman
24
opined that Plaintiff “has no impairment-related physical limitations” (Tr. 201). Morever, the record
shows that Dr. Sherrod reported that “Mr. Bush was tall and obese.” (Tr. 192). Dr. Thurman reported
that “this is an obese white male with brown hair.” (Tr. 200). Dr. Anchor reported that “he is an obese
individual” (Tr. 229). All of them were mere single notations, without providing Plaintiff’s weight or
any medically acceptable clinical and laboratory diagnostic techniques. It is clear that the ALJ had no
evidence of the effect of Plaintiff's obesity on his ability to work. Therefore, because Plaintiff failed
to furnish evidence as to how his alleged obesity affected his ability to work, the ALJ was not required
to give obesity any express consideration in the report.
IV. RECOMMENDATION
In light of the foregoing, the Magistrate Judge RECOMMENDS that Plaintiff’s Motion for
Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be
AFFIRMED.
Any party has fourteen (14) days from receipt of this Report and Recommendation in which
to file any written objection to it with the District Court. Any party opposing said objections shall
have fourteen (14) days from receipt of any objections filed in which to file any responses to said
objections. Failure to file specific objections within fourteen (14) days of receipt of this Report and
Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v. Arn,
474 U.S. 140 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004) (en banc).
25
ENTERED this 8th day of August, 2011.
_________________________________
JOE B. BROWN
United States Magistrate Judge
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