McGraw v. Social Security Administration

Filing 17

REPORT AND RECOMMENDATION: The Magistrate Judge Knowles recommends that Plaintiff's Motion for Judgment on the Administrative Record be Denied, and that the decision of the Commissioner be Affirmed. Signed by Magistrate Judge E. Clifton Knowles on 8/3/12. (dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
VINCENT WADE McGRAW,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

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Civil Action No. 3:11-cv-00256
Judge Wiseman / Knowles

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the
final decision of the Commissioner of Social Security denying Plaintiff Disability Insurance
Benefits (“DIB”), as provided under Title II of the Social Security Act (“the Act”). The case is
currently pending on Plaintiff’s Motion for Judgment on the Administrative Record. Docket No.
14. Defendant filed a Response, arguing that the decision of the Commissioner was supported
by substantial evidence and should be affirmed. Docket No. 15. Plaintiff subsequently filed a
Reply. Docket No. 16.
For the reasons stated below, the undersigned recommends that Plaintiff’s Motion for
Judgement on the Administrative Record be DENIED, and that the decision of the
Commissioner be AFFIRMED.

1

I. INTRODUCTION
Plaintiff filed his application for Disability Insurance Benefits (“DIB”) on July 24, 2007,1
alleging that he had been disabled since May 30, 2007, due to back, leg, and nerve pain, acid
reflux, constipation, vision, fatigue, and depression. See, e.g., Docket No. 10, Attachment
(“TR”), pp. 65, 111-15. Plaintiff’s application was denied both initially (TR 60) and upon
reconsideration (TR 61). Plaintiff subsequently requested (TR 73-74) and received (TR 32-59) a
hearing. Plaintiff’s video hearing was conducted on September 22, 2009, by Administrative Law
Judge (“ALJ”) Joseph T. Scruton. TR 32. Plaintiff and vocational expert (“VE”), Leslie A.
Gillespie,2 appeared and testified. Id.
On November 23, 2009, the ALJ issued a decision unfavorable to Plaintiff, finding that
Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR
12-31. Specifically, the ALJ made the following findings of fact:
1.

The claimant meets the insured status requirements of the
Social Security Act through December 31, 2011.

2.

The claimant has not engaged in substantial gainful activity
since May 30, 2007, the alleged onset date (20 CFR
404.1571 et seq.).

3.

The claimant has the following severe impairments: lumbar
spine degenerative disc disease with radiculopathy to the
left lower extremity; status post lumbar spine surgery;
history of carpal tunnel syndrome; depression; anxiety;

1

The ALJ’s decision listed Plaintiff’s application date as June 26, 2007. TR 15. The
record shows the application date as July 24, 2007. TR 111. This difference is immaterial to the
issues before the Court.
2

The ALJ stated that the VE was “Leslie A. Gillespie.” TR 15. The hearing transcript
identified the VE as “Ms. Lutsky” based on phonetic description. TR 34. This discrepancy is
immaterial to the issues before the Court.
2

history of alcohol and marijuana abuse; and borderline
obesity (20 CFR 404.1520(c)).
4.

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 404.1520(d), 404.1525 and
404.1526).

5.

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform less than the full range of
sedentary work as defined in 20 CFR 404.1567(a).
Specifically, he can lift and carry 2-3 pounds frequently
and up to 10 pounds occasionally. His ability to handle
push and pull controls is consistent with his lifting and
carrying limitations. He can sit up to 6 hours as well as
stand and walk up to two hours in an eight hour workday.
He can frequently but not continuously handle, finger and
feel bilaterally. He can occasionally stoop, kneel and
crouch. He cannot crawl or climb. He may rarely use foot
controls. He must avoid all exposure to workplace hazards
such as heights, moving machinery or moving parts. He
must avoid concentrated exposure to vibrations. He can
understand, remember and carry out short, simple
instructions and some detailed instructions but not complex
instructions. He is able to interact appropriately with coworkers, supervisors and the public on a frequent but not
continuous basis. He is able to adapt to occasional changes
in the work setting.

6.

The claimant is unable to perform any past relevant work
(20 CFR 404.1565).

7.

The claimant was born on September 30, 1966 and was 40
years old, which is defined as a younger individual age 1844, on the alleged disability onset date (20 CFR 404.1563).

8.

The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564).

9.

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that
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the claimant is “not disabled,” whether or not the claimant
has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).
10.

Considering the claimant’s age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 404.1569 and
404.1569(a)).

11.

The claimant has not been under a disability, as defined in
the Social Security Act, from May 30, 2007 through the
date of this decision (20 CFR 404.1520(g)).

TR 17-26.
On January 14, 2010, Plaintiff timely filed a request for review of the hearing decision.
TR 9. On January 18, 2011, the Appeals Council issued a letter declining to review the case (TR
1-4), thereby rendering the decision of the ALJ the final decision of the Commissioner. This
civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the
Commissioner’s findings are supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.

II. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the
extent necessary to analyze the parties’ arguments.
III. CONCLUSIONS OF LAW
A. 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
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purpose of this review is to determine (1) whether substantial evidence exists in the record to
support the Commissioner’s decision, and (2) whether any legal errors were committed in the
process of reaching that decision. Landsaw v. 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)). “Substantial evidence” 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) (citing Consolidated Edison Co. v.
N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).
The reviewing court does not substitute its findings of fact for those of the Commissioner
if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different
conclusion, the decision of the Administrative Law Judge 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 Commissioner did not consider the record as a whole, the
Commissioner’s conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985)
(citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) (citing Futernick v. Richardson, 484
F.2d 647 (6th Cir. 1973))).
In reviewing the decisions of the Commissioner, courts look to four types of evidence:
(1) objective medical findings regarding Plaintiff’s condition; (2) diagnosis and opinions of
medical experts; (3) subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age,
education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).

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B. Proceedings At The Administrative Level
The claimant carries the ultimate burden to establish an entitlement to benefits by
proving his or her “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful
activity” not only includes previous work performed by Plaintiff, but also, considering Plaintiff’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which
Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he
or she applied. 42 U.S.C. § 423(d)(2)(A).
At the administrative level of review, the claimant’s case is considered under a five-step
sequential evaluation process as follows:
(1) If the claimant is working and the work constitutes substantial
gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a “severe”
impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it
must be determined whether he or she suffers from one of the
“listed” 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

3

The Listing of Impairments is found at 20 C.F.R., Pt. 404, Subpt. P, App. 1.
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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,
the burden shifts to the Commissioner to establish the claimant’s
ability to work by proving the existence of a significant number of
jobs in the national economy which the claimant could perform,
given his or her age, experience, education, and residual functional
capacity.
20 C.F.R. §§ 404.1520, 416.920 (footnote added). See also Moon v. Sullivan, 923 F.2d 1175,
1181 (6th Cir. 1990).
The Commissioner’s burden at the fifth step of the evaluation process can be satisfied by
relying on the medical-vocational guidelines, otherwise known as “the grid,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule.
Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability
determination. Id. In such cases where the grid does not direct a conclusion as to the claimant’s
disability, the Commissioner must rebut the claimant’s prima facie case by coming forward with
particularized proof of the claimant’s individual vocational qualifications to perform specific
jobs, which is typically obtained through vocational expert testimony. See Varley v. Secretary,
820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity for purposes of the analysis required at stages
four and five above, the Commissioner is required to consider the combined effect of all the
claimant’s impairments; mental and physical, exertional and nonexertional, severe and
nonsevere. See 42 U.S.C. § 423(d)(2)(B).

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C. Plaintiff’s Statement Of Errors
Plaintiff contends that the ALJ erred in: (1) improperly evaluating Plaintiff’s subjective
complaints of pain; (2) determining his residual functional capacity (“RFC”); (3) rejecting the
opinion of his treating physicians, Drs. Misra and Fernandez; (4) failing to consider all of the
evidence in evaluating his limitations, both singly and in combination; (5) “rejecting” the
vocational expert (“VE”) testimony; and (6) failing to consider his Global Assessment of
Functioning (“GAF”) scores.4 Docket No. 14-1. Accordingly, Plaintiff maintains that, pursuant
to 42 U.S.C. § 405(g), the Commissioner’s decision should be reversed, or in the alternative,
remanded. Id.
Sentence four of § 405(g) states as follows:
The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.
42 U.S.C. §§ 405(g), 1383(c)(3).
“In cases where there is an adequate record, the Secretary’s decision denying benefits can
be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery
v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues have been resolved and the record
adequately establishes a plaintiff's entitlement to benefits. Faucher v. Secretary, 17 F.3d 171,
176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (1994).

4

Plaintiff reiterates these contentions in his Reply. Docket No. 16.
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1. Subjective Complaints of Pain
Plaintiff contends that in finding that his subjective complaints were not fully credible,
the ALJ did not appropriately evaluate his complaints of pain as required by SSR 96-7p. Docket
No. 14-1 at 11-14. Plaintiff argues that an ALJ cannot make a single, conclusory statement that
a claimant’s allegations have been considered or that a claimant’s allegations are not credible,
nor can the ALJ base a credibility determination on a claimant’s ability to perform intermittent
activities of daily living. Id. Plaintiff asserts that his testimony regarding his subjective
complaints is supported by the opinions of his treating physicians, but that the “ALJ failed to
mention these consistencies,” and therefore failed to acknowledge the entire record in his
determination. Id. at 12. Plaintiff additionally asserts that the ALJ erroneously failed to
specifically state whether he found Plaintiff’s testimony to be credible, and erroneously failed to
specifically state the amount of weight he accorded to Plaintiff’s testimony. Id. at 13-14.
Defendant responds that the ALJ properly determined that Plaintiff’s subjective
complaints were not fully credible based on the inconsistencies between Plaintiff’s subjective
complaints and the medical and testimonial evidence of record. Docket No. 15 at 8-10.
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

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Sess. 24) (emphasis added); 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 . . . .”); and Moon v.
Sullivan, 923 F.2d 1175, 1182-83 (“[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 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); and Kirk v. Secretary, 667 F.2d
524, 538 (6th Cir. 1981).
In the case at bar, the ALJ found that Plaintiff’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s] statements
concerning the intensity, persistence and limiting effects of these symptoms are not credible to

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the extent they are inconsistent with the above residual functional capacity assessment.” TR 20.
The ALJ, in his decision, explained the following regarding Plaintiff’s credibility:
The claimant’s credibility as to the severity of his mental health
symptoms is undermined by inconsistencies between the
claimant’s symptoms and his treatment record. On February 9,
2008, the claimant’s mother noted in a Function Report that
“[f]illing out forms sends [the claimant] into a tail spin.” (Exhibit
12E). However, his therapy records indicated improvement in his
mood and symptoms following his hospitalization at the end of
2007. (Exhibit 13F). Julius Fernandez, M.D. reported, on June 4,
2008, that the claimant complained of memory loss, but Dr.
Fernandez noted his recent and remote memory was intact and his
concentration was normal. (Exhibit 17F).
The claimant did not describe any worsening in his symptoms at
the hearing. The claimant testified he has not received any mental
health treatment since February 2009, but he has been able to
function independently and has not experienced an episode of
decompensation. He also testified he spends much of his time
watching documentaries. The claimant testified he sometimes has
problems with people.
At the hearing, the claimant testified he intermittently experiences
numbness in his fingers and burning in his arms due to carpal
tunnel syndrome. He wears braces at night to treat this condition.
Although the claimant had regular appointments with physicians
during 2007 and 2008, the medical record does not contain
evidence the claimant sought further treatment. The undersigned
gives the claimant the benefit of the doubt and limits him to
frequent but not continuous handling, feeling and fingering.
The claimant’s medical records as well as clinical and laboratory
findings support and verify his complaints of back pain. On June
29, 2007, Kenneth Bartholomew, MD noted, during the claimant’s
physical examination, that the claimant had a mildly positive left
straight leg raising test as well as muscle tenderness and spasm.
(Exhibit 4F). Alan Bachrach, M.D. noted that given his clinical
history, the claimant’s July 25, 2007 EMG plus physical findings
were most consistent with a chronic polyneuropathy. (Exhibit 3F).
On July 28, 2007, M. Erin Judson, MSN, APRN-BC noted the
claimant’s findings were consistent with neuropathic pain
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syndrome. (Exhibit 4F). The claimant underwent a decompresive
laminectomy L5 and spinal fusion on October 1, 2007. (Exhibit
12F). Dr. Davis noted, during a physical examination of the
claimant on October 16, 2006, that the claimant had slow gait
maneuvers and slow position changes. (Exhibit 5F). Gray
Stahlman, M.D. reviewed an MRI taken on January 17, 2008. He
stated that the claimant had fairly marked disk degenerative
changes at L4-5 and severe disk degenerative changes at L5-S1
with associated spondylolishthesis. (Exhibit 12F). On June 9,
2008, Dr. Batholomew noted the claimant’s range of motion was
significantly limited in all parameters. (Exhibit 19F). The
claimant was prescribed narcotic pain medications as well as nerve
blocks and epidurals. (Exhibits 1F, 2F, 4F, and 18F).
The clinical and radiological deficits note[d] above reflect a
substantial loss of physical ability and is consistent with the
reduced capacity demoted [sic] in the residual functional capacity
determination in this decision, when balanced against the record as
a whole. For example, the medical record contains a considerable
number of findings upon physical examination that the
undersigned finds inconsistent with a claim of an inability to
perform any sustained work. Dr. Bachrach noted there were no
fibrillation potentials or PSW’s on the claimant’s EMG to suggest
ongoing denervation in any of the muscles examined. (Exhibit
3F). The claimant’s January 2008 MRI did not show any
substantial foraminal or lateral recess stenosis. (Exhibit 12F). Dr.
Bartholomew consistently noted the claimant had intact sensation,
symmetric reflexes, and 5/5 motor strength in all extremities.
(Exhibits 4F, 11F and 19F). Beginning on April 7, 2008, Dr.
Bartholomew noted the claimant was negative bilaterally on the
straight leg raising test. (Exhibit 19F).
Additionally, the claimant recovered following a T4 to L2
posterior spinal segmental instrumentation on May 5, 2008 to
correct multiple traumas incurred in a motor vehicle accident.
(Exhibit 19F). However, Dr. Fernandez saw the claimant three
times over the four months following the surgery and he noted no
abnormalities and good correction of his kyphotic deformity. Dr.
Fernandez recommended the claimant begin follow up visits every
six months, even though the claimant reported falling at his last
appointment. (Exhibit 17F). Following the surgery through 2009,
the claimant consistently reported at least moderate pain relief
from his medications to Dr. Bartholomew. On February 17, 2009,
Dr. Bartholomew noted the claimant reported exercising and an
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improvement in his physical and mental health. (Exhibit 19F).
The claimant reported that his carpel tunnel, his low back pain, and
his lower extremity pain began in 1998. (Exhibit 2E). After the
initial onset, the claimant experienced intermittent periods of
worsening. (Exhibit 4F). He had three lumbar surgeries in 1998
and two in 2005. (Exhibits 1F and 2F). However, the record
shows that the claimant maintained his good employment record
performing heavy exertion work until May 30, 2007, a factor
which appears inconsistent with the alleged severity of his
impairments.
Although claimant has alleged various side effects from the use of
medications, the medical records, such as office treatment notes,
subsequent to his December 2007 hospitalization do not
corroborate those allegations. On February 9, 2008, the claimant’s
mother reported his medications caused the claimant to become
confused and to misunderstand or forget. (Exhibit 12E). The
claimant testified his pain medications caused insomnia and his
sleep medications gave him restless leg. His treatment notes from
the Dr. Bartholomew note the claimant reported constipation
sedation and sexual dysfunciton on April 7, 2008. The claimant
subsequently reported continuing problems with constipation.
(Exhibit 19F). While he is not currently taking any medications,
the undersigned finds the claimant must avoid all exposure to
workplace hazards such as heights, moving machinery or moving
parts.
The claimant has admitted certain abilities which provide support
for part of the residual functional capacity conclusion in this
decision. The claimant testified his doctors recommended he
restrict his lifting to under twenty-five pounds. In a written
statement, his mother estimated he could lift up to 20 pounds and
walk about a ½ mile. She also reported relying on the claimant for
assistance in describing his condition. (Exhibit 12E). However,
the claimant also testified the heaviest thing he lifts is a laptop and
that the weight of wet laundry aggravates his pain. The
undersigned finds the claimant credible to the extent he would
experience back pain with heavy lifting. The residual functional
capacity was, accordingly, reduced to accommodate those
limitations by limiting the claimant to lifting and carrying 2-3
pounds frequently and up to 10 pounds occasionally. His ability to
handle push and pull controls is consistent with this lifting and
carrying limitations.
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The claimant’s description of symptoms at the hearing was
relatively vague and generalized, lacking the specificity which
might otherwise make it more persuasive. Somewhat in contrast to
earlier written statements of record, at [the] hearing he had
difficulty estimating his physical abilities, repeatedly responding
they “vary.” The claimant also provided very brief responses to
direct questions from the undersigned while testifying, and
volunteered very little additional information.
The claimant’s testimony contained inconsistencies which
rendered it less persuasive. He testified he attempts to relieve his
constant pain by generally staying in bed, but he also testified he
goes grocery shopping “just for the exercise.” He testified he
spends most of his time watching television, particularly
documentaries, which suggests a level of concentration
inconsistent with a disabling level of pain. He stated he cannot
bend or twist. However, he testified he is able to shower and dress
himself. The claimant testified he uses a cane, although he did not
bring it to the hearing. The claimant testified, despite not taking
any medication since February 2009, his pain level on average is a
4-6. This contrasts with his most recent February 17, 2009
treatment note from Dr. Bartholomew where he reported a pain
level of 6 of 10 with a moderate improvement of pain relief from
his medication. (Exhibit 19F).
...
The claimant’s credibility as to the severity of his mental and
physical limitations is also undermined by evidence he failed to be
forthcoming with his treating physicians. Dr. Bartholomew noted
the claimant consistently denied using marijuana, even though his
urine drug screen was positive more than once. (Exhibit 4F). The
claimant testified his motor vehicle accident was a suicide attempt,
but he did not report this intent to any medical personnel despite
being hospitalized for some time. The claimant did not report any
muscle aches or joint pains during his physical exam taken when
he was hospitalized for depression in December 2007. (Exhibit
9F).
TR 21-23.
As can be seen, the ALJ’s decision specifically addresses in great detail not only the
medical evidence, but also Plaintiff’s testimony and his subjective claims, clearly indicating that
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these factors were considered. TR 20-25. Moreover, contrary to Plaintiff’s assertion, the ALJ
explicitly discussed the evidence that was consistent with Plaintiff’s subjective complaints. TR
21-13. Despite there being instances of congruency, after reviewing the record in its entirety, the
ALJ found that many of Plaintiff’s complaints were not fully credible because they were
inconsistent with the overall medical evidence of record or with Plaintiff’s own testimony. Id.
The ALJ specifically discussed inconsistencies within Plaintiff’s testimony and occasions when
Plaintiff was not entirely forthcoming with his physicians, and specifically discussed the medical
evidence that did not support Plaintiff’s subjective complaints. Id. Additionally, the ALJ
explained in his decision why Plaintiff’s vague testimony at his hearing led the ALJ to further
discount his credibility. Id.
The ALJ’s decision properly discusses Plaintiff’s “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.” Felisky,
35 F.3d at 1039 (construing 20 C.F.R. § 404.1529(c)(2)). It is clear from the ALJ’s detailed
articulated rationale that, although there is evidence which could support Plaintiff’s claims, the
ALJ chose to rely on medical findings that were inconsistent with Plaintiff’s allegations. This is
within the ALJ’s province.
The ALJ, when evaluating the entirety of the evidence, is entitled to weigh the objective
medical evidence against Plaintiff’s subjective claims of pain and reach a credibility
determination. See, e.g., Walters, 127 F.3d at 531; and Kirk v. Secretary, 667 F.2d 524, 538 (6th
Cir. 1981). 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

15

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 (citing Bradley, 682 F.2d at 1227; cf King v. Heckler,
742 F.2d 968, 974-75 (6th Cir. 1984); and Siterlet v. Secretary, 823 F.2d 918, 921 (6th Cir.
1987)). If the ALJ rejects a claimant’s testimony as not credible, however, the ALJ must clearly
state the reasons for discounting a claimant’s testimony (see Felisky, 35 F.3d at 1036), and the
reasons must be supported by the record (see King, 742 F.2d at 975).
After assessing all the objective medical evidence, the ALJ determined that Plaintiff’s
limitations were not as severe as he alleged. TR 20-25. As has been noted, this determination is
within the ALJ’s province.
The ALJ observed Plaintiff during his hearing, assessed the medical records, and
reached a reasoned decision. The ALJ’s findings are supported by substantial evidence for the
reasons discussed throughout this Report and Recommendation, and the decision not to accord
full credibility to Plaintiff’s allegations was proper. Therefore, this claim fails.
2. Residual Functional Capacity
Plaintiff maintains that the ALJ’s residual functional capacity (“RFC”) determination was
erroneous, because that determination is inconsistent with SSR 96-9p and 20 CFR 404, Subpt.
P., App. 2, 201.00(h)(4). Docket No. 14-1 at 7, 14. Plaintiff contends that the medical evidence
establishes that his RFC is actually less than sedentary. Id. at 14. Plaintiff additionally takes
issue with the hypothetical questions posed by the ALJ to the VE, and takes issue with the ALJ’s
reliance upon the VE’s answers thereto when determining Plaintiff’s RFC. Id. at 7. Plaintiff’s

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contentions regarding the ALJ’s hypothetical questions and his reliance on the VE’s answers will
be discussed infra Part III.C.5.
Defendant responds that the ALJ’s RFC determination was proper and consistent with
SSR 96-9p and 20 CFR 404, Subpt. P., App. 2, 201.00(h)(4). Docket No. 15 at 11.
“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
crouching), may reduce your ability to do past work and other work.
20 C.F.R. § 404.1545(b).
Plaintiff correctly states that a claimant’s sporadic daily activities may not indicate what
a claimant can do on a sustained basis, particularly where the claimant experiences periods of
remission and exacerbation. Docket No. 14-1 at 13; See Cohen v. Secretary, 964 F.2d 524 (6th
Cir. 1992). Plaintiff is incorrect, however, that the ALJ based his determination on “sporadic
daily activities.” Rather, the record in the case at bar is replete with doctors’ evaluations,
medical assessments, and test results, all of which were properly considered by the ALJ in
determining Plaintiff’s “residual functional capacity for work activity on a regular and
continuing basis.”

17

After evaluating all of the objective medical and testimonial evidence of record and
Plaintiff’s reported level of activity, the ALJ determined that Plaintiff retained the RFC to
perform less than a full range of sedentary work. TR 20. Specifically, the ALJ stated:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform less than the full range of sedentary work as defined in 20
CFR 404.1567(a). Specifically, he can lift and carry 2-3 pounds
frequently and up to 10 pounds occasionally. His ability to handle
push and pull controls is consistent with his lifting and carrying
limitations. He can sit up to 6 hours as well as stand and walk up
to two hours in an eight hour workday. He can frequently but not
continuously handle, finger and feel bilaterally. He can
occasionally stoop, kneel and crouch. He cannot crawl or climb.
He may rarely use foot controls. He must avoid all exposure to
workplace hazards such as heights, moving machinery or moving
parts. He must avoid concentrated exposure to vibrations. He can
understand, remember and carry out short, simple instructions and
some detailed instructions but not complex instructions. He is able
to interact appropriately with co-workers, supervisors and the
public on a frequent but not continuous basis. He is able to adapt
to occasional changes in the work setting.
Id. For the reasons discussed below, the ALJ properly evaluated the evidence in reaching this
RFC determination, and the Regulations do not require more.
Plaintiff contends that the ALJ’s determination regarding his lifting restriction is
inconsistent with SSR 96-9p. Docket No. 14-1 at 7. SSR 96-9p provides that “the full range of
sedentary work requires the ability to lift no more than 10 pounds at a time and occasionally to
lift or carry articles like docket files, ledgers, and small tools.” It notes that, if a person cannot
maximally lift and/or carry more than 1 or 2 pounds, then the available unskilled sedentary
occupational base would be eroded significantly, but also notes that, “a finding that an individual
has the ability to do less than a full range of sedentary work does not necessarily equate with a

18

decision of ‘disabled.’” SSR 96-9p.
While Plaintiff correctly notes that SSR 96-9p provides that “an inability to lift or carry
more than one or two pounds would erode the unskilled sedentary occupational base
significantly,” the ALJ determined that Plaintiff retained the RFC to do more than that. TR 20.
Specifically, the ALJ determined that Plaintiff could lift and/or carry 2-3 pounds frequently and
up to 10 pounds occasionally. Id. The ALJ’s determination is, therefore, consistent with SSR
96-9p.
Plaintiff additionally asserts that medical and testimonial evidence supports that he
cannot work a full eight hour workday and that his ability to perform exertional activity falls
below the sedentary standard set forth in 20 CFR 404, Subpt. P., App. 2, 201.00(h)(4). Docket
No. 14-1 at 14. That Regulation states as follows:
(4) “Sedentary work” represents a significantly restricted range of
work, and individuals with a maximum sustained work capability
limited to sedentary work have very serious functional limitations.
Therefore, as with any case, a finding that an individual is limited
to less than the full range of sedentary work will be based on
careful consideration of the evidence of the individual’s medical
impairment(s) and the limitations and restrictions attributable to it.
Such evidence must support the finding that the individual’s
residual functional capacity is limited to less than the full range of
sedentary work.
20 CFR 404, Subpt. P., App. 2, 201.00(h)(4)
Plaintiff is correct in stating that his RFC is less than sedentary.5 Docket No. 14-1 at 14.

5

As support, Plaintiff states:
The totality of proof is that the Plaintiff can lift only ten pounds occasionally;
walk/stand less than two hours in a workday; must alternate sitting and standing;
19

This assertion is consistent with the ALJ’s RFC finding regarding Plaintiff, as the ALJ similarly
found that Plaintiff could perform less than the full range of sedentary work. TR 20. As will be
discussed in greater detail below, the ALJ thoroughly evaluated the medical evidence of record
and determined that, although Plaintiff had serious functional limitations, he nevertheless
retained the RFC for less than the full range of sedentary work. Id. The ALJ determined that
Plaintiff’s RFC did not preclude him from being able to perform any work. Id. As noted, SSR
96-9p indicates that, “a finding that an individual has the ability to do less than a full range of
sedentary work does not necessarily equate with a decision of ‘disabled.’” Additionally, as will
be discussed infra, in Part III.C.5., the VE testified that there were a significant number of jobs
within the state and national economies that Plaintiff could perform with the above RFC. TR 2526, 54-56.
Moreover, as can be seen in the ALJ’s detailed discussion of the medical evidence quoted
in the previous statement of error, the ALJ relied upon several medical sources in determining
Plaintiff’s RFC. For instance, the ALJ discussed Dr. Alan F. Bachrach’s, M.D., Ph.D.,
examination of Plaintiff in the summer of 2007. TR 22, 204-05. Dr. Bachrach performed
Sensory NCS, Motor NCS, and Needle EMG tests upon Plaintiff, and, upon their completion,
noted the following:
Three of four motor NCVs were slightly slow. In addition,
fasiculations were noted in the EDB muscles bilaterally.
should never climb, kneel, crouch, crawl, or stoop; and has significant
manipulative limitations.
Docket No. 14-1 at 14. Because Plaintiff does not assert any errors with the ALJ’s
determination regarding Plaintiff’s mental limitations, those limitations will not be discussed
herein.
20

Fasiculations and muscle contractions were noted in the thigh and
calf muscles, particularly on the left, but no electrical evidence of
fasiculations was measured except in the EDB muscles.
The mild slowing of the motor NCVs may indicate a generalized
neuropathy. However, given the clinical history, this patient’s
EMG plus physical findings are most consistent with a chronic
polyneuropathy. There were no fibrillation potentials or PSW’s to
suggest ongoing denervation in any of the muscles examined.
TR 205. The ALJ determined that these findings were ones of among several medical findings
that were “inconsistent with a claim of an inability to perform any sustained work.” TR 21-22.
On October 15, 2007, Dr. Bruce A. Davis, M.D., performed a consultative exam. TR
209-11. Upon examination, Dr. Davis observed that Plaintiff: was in no acute distress; was well
developed with no obvious deformities; had full motion and good strength in his neck (normal
flexion, extension, lateral flexion, rotation) and both upper extremities (normal shoulder/elbow,
wrist/finger motion/dexterity, good grip - 5/5); did not have tenderness or swelling with his
lower back surgery scars, though did have some pain; was slow in changing positions; could not
squat completely; did not have clubbing, cyanosis, lymphadenopathy, or edema; and, performed
slow gait and gait maneuvers (heel, tow, and tandem) across the exam room without assistance.
Id. With regard to Plaintiff’s range of motion, Dr. Davis observed the following musculoskeletal
measurements: 30 degree thoracolumbar flexion, 10 degree extension, 15 degree lateral motion,
100 degree hip flexion, 30 degree abduction, 70 degree supine/70 degree seated straight leg
raising, and 130 degree normal knee flexion with zero degree extension. Id.
Dr. Davis opined that Plaintiff could lift and/or carry 10 pounds frequently and
occasionally; stand and/or walk 2-4 hours in an 8 hour workday; sit 8 hours in an 8 hour

21

workday; perform limited bending and squatting; and perform limited climbing/heights. Id.
After considering Dr. Davis’s examination and the evidence its entirety, the ALJ found that this
opinion was consistent with the medical record. TR 24. The ALJ, therefore, accorded it
significant weight, and ultimately determined that Plaintiff could “sit up to 6 hours as well as
stand and walk up to two hours in an eight hour workday . . . occasionally stoop, kneel and
crouch . . . cannot crawl or climb.” Id.
The ALJ also considered records from Plaintiff’s back surgeon, Dr. Gray Stahlman, M.D.
TR 280-95. Specifically, the ALJ noted that Plaintiff “underwent a decompressive laminectomy
L5 and spinal fusion on October 1, 2007.” TR 21, 280-95. The ALJ observed:
On January 22, 2008, Dr. Stahlman stated the claimant would
likely “never be substantially employable in a position that
requires him to do any kind of lifting, standing, bending, twisting,
or walking,” but he “may be able to do some form of sedentary
work.” (Exhibit 12F). Dr. Sathlman did not describe the
claimant’s abilities. His opinion is not inconsistent with a finding
the claimant is able to perform sedentary work. It is given
marginal weight because its vague language prevents a function by
function assessment of the claimant’s ability to perform work.
TR 23. As noted by the ALJ, while Dr. Stahlman’s opinion is not conclusive, it supports an RFC
of less than a full range of sedentary work.
Additionally, as noted in the statement of error above, Dr. Julius Fernandez, M.D.,
treated Plaintiff in 2008 following his lumbar surgery “to correct multiple traumas incurred in a
motor vehicle accident.” TR 22; 338-50. Regarding these records, the ALJ stated in part:
Dr. Fernandez saw the claimant three times over the four months
following the surgery and he noted no abnormalities and good
correction of his kyphotic deformity. Dr. Fernandez recommended
the claimant begin follow up visits every six months, even though
22

the claimant reported falling in his last appointment. (Exhibit
17F).
TR 22.
After his last recorded examination on September 19, 2008, Dr. Fernandez noted that
Plaintiff’s back wound was well-healed, clean, dry, and intact with no signs or symptoms of
infection; Plaintiff appeared well developed, well nourished, and in no acute distress; Plaintiff’s
gait and station was normal; and, his motor strength was 5/5 for both upper and lower
extremities. TR 339-40. These findings are consistent with the ALJ’s determination that, while
Plaintiff’s limitations are severe, he nevertheless retains the capacity to perform less than a full
range of sedentary work.
Moreover, the ALJ’s determination is supported by records from Dr. Kenneth
Bartholomew, M.D., who treated Plaintiff from June 2007 to February 2009. TR 206-08, 26279, 367-414. Regarding records from Dr. Bartholomew, the ALJ stated in part:
. . . On June 29, 2007, Kenneth Bartholomew, MD noted, during
the claimant’s physical examination, that the claimant had a mildly
positive left straight leg raising test as well as muscle tenderness
and spasm. (Exhibit 4F). . . .
. . . On June 9, 2008, Dr. Bartholomew noted the claimant’s range
of motion was significantly limited in all parameters. (Exhibit
19F).
...
. . . Dr. Bartholomew consistently noted the claimant had intact
sensation, symmetric reflexes, and 5/5 motor strength in all
extremities. (Exhibits 4F, 11F, and 19F). Beginning on April 7,
2008, Dr. Bartholomew noted the claimant was negative bilaterally
23

on the straight leg raising test. (Exhibit 19F).
. . . Following the surgery through 2009, the claimant consistently
reported at least moderate pain relief from his medications to Dr.
Bartholomew. On February 17, 2009, Dr. Bartholomew noted the
claimant reported exercising and an improvement in his physical
and mental health. (Exhibit 19F).
TR 21-22.
As can be seen through the quoted passages here and in the statement of error above, the
ALJ considered the evidence of record, reached a reasoned decision, and clearly articulated the
basis for his RFC finding. Substantial evidence supports the ALJ’s determination; the ALJ’s
determination, therefore, must stand.
3. Weight Accorded to the Opinions of Drs. Misra and Fernandez
Plaintiff contends that the ALJ erred in failing to give controlling weight to the opinions
of Drs. Misra and Fernandez, two of Plaintiff’s treating physicians. Docket No. 14-1 at 14-17.
Plaintiff argues that the ALJ used faulty reasoning and ignored the record when rejecting their
opinions. Id. Plaintiff also argues that “[t]he ALJ should not be allowed to ignore the obvious
and then ambush the Plaintiff in his decision because such action is fundamentally not fair.”
Docket No. 14-1 at 16.
Defendant responds that the ALJ properly accorded their opinions little weight because
“the Commissioner is not required to defer to an unsupported conclusory opinion of disability.”
Docket No. 15 at 15. Defendant argues that the ALJ properly accorded more weight to Dr.
Davis’ opinion because it was consistent with Plaintiff’s medical records. Id. Additionally,
Defendant notes that Dr. Stahlman’s opinion supports the ALJ’s finding that Plaintiff can engage
24

in some kind of substantial work. Id.
With regard to the evaluation of medical evidence, the Code of Federal Regulations
states:
Regardless of its source, we will evaluate every medical
opinion we receive. Unless we give a treating source’s opinion
controlling weight under paragraph (d)(2) of this section, we consider
all of the following factors in deciding the weight we give to any
medical opinion.
(1) Examining relationship. Generally, we give more weight
to the opinion of a source who has examined you than to the opinion
of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight
to opinions from your treating sources, since these sources are likely
to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence
in your case record, we will give it controlling weight. When we do
not give the treating source’s opinion controlling weight, we apply
the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii) of this section,
as well as the factors in paragraphs (d)(3) through (d)(6) of this
section in determining the weight to give the opinion. . . .
(3) Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly medical signs
and laboratory findings, the more weight we will give that opinion.
The better an explanation a source provides for an opinion, the more
weight we will give that opinion. . . .
(4) Consistency. Generally, the more consistent an opinion
is with the record as a whole, the more weight we will give to that
opinion.
25

(5) Specialization. We generally give more weight to the
opinion of a specialist about medical issues related to his or her area
of specialty than to the opinion of a source who is not a specialist.
...
20 C.F.R. § 416.927(d) (emphasis added). See also 20 C.F.R. § 404.1527(d).
If the ALJ rejects the opinion of a treating source, he is required to articulate some basis
for rejecting the opinion. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987). The Code of
Federal Regulations defines a “treating source” as:
[Y]our own physician, psychologist, or other acceptable medical
source who provides you or has provided you, with medical
treatment or evaluation and who has, or has had, an ongoing
treatment relationship with you.
20 C.F.R. § 404.1502.
Drs. Misra and Fernandez each completed a Request for Medical Information form from
the State of Tennessee Department of Human Services. TR 24, 353, 338. Both physicians
checked the box indicating that Plaintiff was “unfit for employment or training for employment.”
Id. Neither form, however, contained any narrative explaining the medical basis of Plaintiff’s
functional limitations that would preclude him from employment. Id.
The ALJ is not bound by conclusory statements from a treating physician that a claimant
is disabled because the definition of disability requires consideration of both medical and
vocational factors. See, e.g., King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); Hall v. Bowen,
837 F.2d 272, 276 (6th Cir. 1988). Regarding the opinions of Drs. Misra and Fernandez, the ALJ
stated:
Although they are treating physicians, the opinions of Ameresh
26

Misra, M.D. and Dr. Fernandez are given little weight. Both
doctors filled out a “Request for Medical Information” from the
State of Tennessee Department of Human Services in which each
checked a box stating the claimant was “unfit for employment or
training for employment.” (Exhibit 17F and 18F). Dr. Misra also
indicated the claimant was mentally unfit for employment. (Exhibit
18F). These statements are opinions on an issue reserved to the
Commissioner of Social Security. A statement by a medical
source that the claimant is “disabled” or “unable to work” does not
mean that the [sic] such claimant will be determined to be disabled
as that term is defined in the Act (20 C.F.R §§ 404.1527(e) and
416.927(e) and Social Security Ruling 96-2p). Neither doctor
provided a narrative to explain the medical basis for selecting this
opinion.
TR 24.
As the ALJ correctly noted, neither physician provided any explanation or medical
evidence to support the indicated conclusion. Id. Because the physicians failed to explain the
medical reasons for their opinions, and failed to cite medical evidence supporting their opined
functional assessments, the opinions of Drs. Misra and Fernandez contained in the Request for
Medical Information form are conclusory, and therefore not entitled to controlling weight.
Moreover, Dr. Fernandez’s opinion expressed in the Request was inconsistent with his
own treating notes. TR 22, 338-341. The ALJ recounted Dr. Fernandez’ observations that
Plaintiff appeared well developed and well nourished, had normal gait and station, had 5/5 motor
strength in both extremities, and displayed no abnormalities in the lumbar spine. Id. Dr.
Fernandez also observed that, despite still having “failed back surgery syndrome and issues of
previous lumbar surgery,” Plaintiff had done extremely well with his back. Id. The ALJ further
noted Dr. Fernandez’ indication that he did not need to see Plaintiff again for another six months.
Id. Dr. Fernandez made these statements and observations on September 19, 2008, the same day

27

he completed the Request form opining that Plaintiff was permanently unfit for employment. Id.
These inconsistencies support the ALJ’s decision to accord little weight to Dr. Fernandez’s
opinion.6
Furthermore, the opinions of Drs. Misra and Fernandez are also inconsistent with other
physicians’ medical opinions considered by the ALJ. Examining physician Dr. Davis and two
consulting physicians all opined that Plaintiff could engage in limited physical activities, such as
lifting, pushing, pulling, sitting, standing, walking, stooping, kneeling, and crouching. TR 2324, 211, 255-256, 313-314. Additionally, Dr. Stahlman, another treating physician, opined that
even though Plaintiff would not be able to work in a position that required lifting, standing,
bending, twisting or walking, he might be able to do “some form of sedentary work.” TR 23,
280.
As the Regulations state, the ALJ is not required to give controlling weight to a treating
physician’s evaluation when that evaluation is inconsistent with other substantial evidence in the
record. See 20 C.F.R. § 416.927(d)(2) and 20 C.F.R. § 404.1527(d)(2). Instead, when there is
contradictory evidence, the treating physician’s opinion is weighed against the contradictory
evidence under the criteria listed above. Id. When the opinions of treating physicians are
inconsistent with each other, the final decision regarding the weight to be given to the differing
opinions lies with the Commissioner. 20 C.F.R. § 416.927(e)(2). The opinions of Drs. Misra
and Fernandez were inconsistent with the evidence of record, including their treatment notes and

6

Regarding the treatment notes of Dr. Misra, most of those notes are illegible. TR 351366. While Dr. Misra’s medical records did note Plaintiff’s back and arm pain, it does not
appear that Dr. Misra explained why the pain prevented Plaintiff from engaging in any gainful
activity, including modified sedentary work. Id.
28

the opinions of other physicians of record. As such, the Regulations do not mandate that the
ALJ accord the opinions of Drs. Misra and Fernandez controlling weight. Accordingly,
Plaintiff’s argument fails.
4. Considering All the Evidence In Evaluating Impairments
Plaintiff contends that, although the ALJ mentioned certain evidence in his opinion, “it
would appear that the ALJ did not take them into consideration in his finding of not disabled.”
Docket No. 14-1 at 8-9. Specifically, Plaintiff argues that the ALJ failed to consider what effect
that evidence would have on his ability to work, in violation of SSR 85-28, which requires the
ALJ to consider all the physical impairments and provide an analysis regarding how the physical
impairments, either individually or in combination, impact the claimant’s ability to engage in
substantial gainful activity. Id.
Defendant responds that Plaintiff bears the burden to prove the severity of his alleged
impairments. Docket No. 15 at 14. Defendant further responds that the ALJ properly evaluated
Plaintiff’s severe impairments and “did not ignore the underlying medical evidence which
established the severity of these impairments.” Id.
In his opinion, the ALJ determined that Plaintiff suffers from the following severe
impairments: lumbar spine degenerative disc disease with radiculopathy to the left lower
extremity; status post lumbar spine surgery; history of carpal tunnel syndrome; depression;
anxiety; history of alcohol and marijuana abuse; and borderline obesity. TR 17. The ALJ then
throughly discussed and evaluated the medical and testimonial evidence of record in determining
Plaintiff’s RFC. TR 20-25.

29

Plaintiff argues that the ALJ failed to properly consider the following evidence:
The ALJ stated in his decision that “the claimant’s lumbar spine
degenerative disc disease with radiculopathy to the left lower
extremity and status post lumbar spine surgery are not
characterized by nerve root compression, spinal archnoiditis, or
spinal stenosis, and therefore do not meet Medical Listing 1.04[”].
However, a CT conducted on September 11, 2007 revealed
moderate right foraminal stenosis. R 295.7
...
[O]n July 28, 2007, M. Erin Judson, MSN, APRN-BC noted the
claimant’s findings were consistent with nueropathic pain
syndrome. R. 206-208 The claimant underwent a decompressive
laminectomy L5 and spinal fusion on October 1, 2007. R. 280-295
Dr. Davis noted, during a physical examination of the claimant on
October 16, 2007, that the claimant had slow gait maneuvers and
slow position changes. R. 209-211 Gray Stahlman, M.D. reviewed
an MRI taken on January 17, 2008. He stated the claimant had
fairly marked disk degenerative changes at L4-5 and severe disk
degenerative changes at L5-S1 with associated spondylolisthesis.
Ex 12F On June 9, 2008, Dr. Bartholomew noted the claimant’s
range of motion was significantly limited in all parameters. [E]x
19[F] The claimant was prescribed narcotic pain medication as

7

To the extent that Plaintiff may here be arguing that he meets Listing 1.04, the Sixth
Circuit has held that, “[i]ssues averted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.” McPherson v. Kelsey, 125 F.3d 989,
995-96 (6th Cir. 1997). If Plaintiff is contending that the September 11, 2007 CT revealing
moderate right foraminal stenosis undermines the ALJ’s statement so as to demonstrate that he
meets Listing 1.04, that sentence would be referring to the issue in a perfunctory manner, and is
insufficient to develop an argument that Plaintiff meets Listing 1.04. Id. Accordingly, to the
extent that Plaintiff contends that he meets Listing 1.04, that issue is deemed waived. Id.
Moreover, on January 22, 2008, Dr. Stahlman remarked the following:
The MRI of his lumbar spine done at TOA on 01/17/2008 was reviewed. . . .
There is no substantial foraminal or lateral recess stenosis.
TR 280. The 2008 MRI findings are more recent than the referenced 2007 CT, and they
contradict Plaintiff’s assertion, while supporting the ALJ’s determination.
30

well as nerve blocks and epidurals. R. 187-199; 200-203; 206-208;
351-366.
Docket No. 14-1 at 8, quoting TR 21 (footnote added).
Despite Plaintiff’s contention that the ALJ did not take this evidence into consideration
when making his disability determination, immediately after discussing the evidence in his
decision, the ALJ stated:
The clinical and radiological deficits notes [sic] above reflect a
substantial loss of physical ability and is consistent with the
reduced capacity demoted [sic] in the residual functional capacity
determined in this decision, when balanced against the record as a
whole. For example, the medical record contains a considerable
number of findings upon physical examination that the
undersigned finds inconsistent with an inability to perform any
sustained work . . . .
TR 21-22.
The ALJ’s decision demonstrates that he did consider the quoted evidence in his
determination, and he found that it was consistent with his RFC finding when viewing the record
as a whole. Id. While it is true that some of the testimony and evidence supports Plaintiff’s
allegations of disability, it is also true that much of the evidence supports the ALJ’s
determination that Plaintiff retains the capacity to perform less than a full range of sedentary
work with certain exertional and non-exertional limitations. TR 20.
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, 745 F.2d at 387. In fact, even if the evidence could also support a different conclusion,

31

the decision of the ALJ must stand if substantial evidence supports the conclusion reached. Her,
203 F.3d at 389 (citing Key, 109 F.3d at 273). The ALJ properly considered all available
evidence in making his determination. His decision was properly supported by “substantial
evidence;” therefore, the ALJ’s decision must stand.
5. Reliance on the Vocational Expert Testimony
Plaintiff argues that the “ALJ’s determination to reject the opinion of testifying VE Dr.
Lutsky [sic] is not supported by substantial evidence.” Docket No. 14-1 at 11. Specifically,
Plaintiff notes the VE testified that an individual who needed unscheduled breaks or who had a
GAF score of 50 (indicating marked impairments) would be unable to maintain employment. Id.
Defendant responds that the ALJ properly relied upon the VE testimony that
corresponded with Plaintiff’s limitations that he found credible. Docket No. 15 at 12. Defendant
further responds that the VE’s testimony provides substantial evidence that supports the ALJ’s
decision. Id.
As explained above, the Commissioner has the burden at step five of the sequential
evaluation process of establishing the claimant’s ability to work by proving the existence of a
significant number of jobs in the national economy that the claimant could perform, given his or
her age, experience, education, and residual functional capacity. 20 C.F.R. §§ 404.1520,
416.920. See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). The Commissioner’s
burden at step five can be satisfied by relying on the grid rules only if Plaintiff is not
significantly limited by nonexertional impairments, such as mental limitations, manipulative
limitations or environmental limitations. Abbot v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990). In

32

the presence of nonexertional limitations that would preclude the application of the grid
regulations, “expert testimony would be required to satisfy the Secretary’s burden of proof
regarding the availability of jobs which this particular claimant can exertionally handle.” Kirk v.
Secretary, 667 F.2d 524, 531 (6th Cir. 1983). In other words, the ALJ may rely on the testimony
of a vocational expert in response to a hypothetical question as substantial evidence of the
existence of a significant number of jobs that the claimant is capable of performing as long as the
hypothetical question accurately represents the claimant’s credible limitations. See Varley, 820
F.2d at 779 (quoting O’Banner v. Secretary, 587 F.2d 321, 323 (6th Cir. 1978)).
At the hearing, the ALJ posed several hypothetical questions to the VE, all of which
incorporated Plaintiff’s nonexertional limitations, as well as Plaintiff’s age, education, work
experience, residual functional capacity for less than a full range of sedentary work, and postural
limitations. TR 54-56. With regard to the hypothetical questions posed by the ALJ and the VE’s
answers thereto, the hearing transcript reads as follows:
ALJ:

Okay. Now I ask you to assume the following
hypothetical. Now this hypothetical individual would
have, would be of the same work background as the
claimant, but let’s assume that such an individual were able
to frequently lift two to three pounds, occasionally lift 10
pounds, could sit for six hours in an eight hour day, stand
and walk for a few hours in an eight hour day, and had
limitations in that they were able to no more than
frequently handle, finger and feel bilaterally, right hand
being the dominant hand, pushing/pulling limitations
consistent with lifting and carrying limitations, rarely able
to operate foot controls left or right, not able to engage in
any climbing activity, no more than occasionally able to
stoop, kneel, crouch and never crawl at all during work
activity. An individual would need to avoid all exposure to
work hazard such as unprotected pipes, moving machinery,
moving mechanical parts, the individual would need to
33

avoid concentrated exposure to vibrations that might occur
in the work place. And that due to mental health
limitations, they are able to understand, remember and
carry out short simple instructions and some detailed
instructions, but not complex instructions. And they’re
able to interact appropriately with supervisors, coworkers,
and the public on a frequent basis. An individual able to
adapt to occasional changes in the work setting. Now such
an individual with those abilities or limitations, is there
work that exists in the national, regional or state economies
compatible with that, those limitations?
VE:

Yes, sir, I believe there would be. Certainly this individual
would be restricted to unskilled sedentary work, given the
totality of the impairment and limitations. But one
example of work that this individual would perform would
be a printed circuit label taper, the DOT code is 017.684010, this is sedentary unskilled work with an SVP of two.
There are approximately 288,000 nationally, and 13,000 in
the state of Tennessee. The second example would be an
order clerk in food and beverage, the DOT code is 209.567014, this is also sedentary unskilled work with an SVP of
two. There are approximately 256,000 nationally, and
5,000 in the state of Tennessee. A third example would be
eyeglass frame polisher, the DOT code is 713.684-038, this
is sedentary unskilled work with an SVP of two. There are
approximately 97,000 nationally, and 3,000 in the state of
Tennessee.

Id. This hypothetical question accurately represented Plaintiff’s determined limitations, both
exertional and nonexertional, as deemed credible by the ALJ. Compare TR 20 with TR 54-55.
Accordingly, the ALJ could rely upon the VE’s answer to this question in making his disability
determination.
The ALJ then modified the hypothetical:
ALJ:

Now an individual due to pain needed to take unscheduled

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breaks in the course of a work day, and those breaks were
two to three unscheduled breaks, that is in addition to
regular rest breaks that were given in the work place, and
those rest periods last as long as 15 minutes, would that be
compatible with work that exists in the national, regional,
or state economies?
VE:

Your Honor, an individual taking breaks with that
frequency in addition to their normal breaks in all
likelihood is not going to be able to maintain employment
because they’re not going to meet their employer’s
standards for productivity on the job.

Id.
Plaintiff is correct in stating that, in response to this hypothetical question and the
hypothetical questions posed to the VE by Plaintiff’s counsel, the VE testified that those
hypothetical individuals were precluded from maintaining employment. TR 56-58. As
discussed above, however, an ALJ can properly rely upon the testimony of a VE in response to a
hypothetical question when that hypothetical question contains the exertional and non-exertional
limitations deemed credible by the ALJ. After evaluating all of the medical and testimonial
evidence of record, the ALJ in the case at bar made a reasoned RFC determination that did not
include the need for Plaintiff to take two to three unscheduled breaks during the course of a
workday. Because the ALJ’s first hypothetical question accurately represented Plaintiff’s
limitations, the ALJ properly relied on the VE’s answer to the hypothetical question to prove the
existence of a significant number of jobs in the national economy that Plaintiff could perform.
See Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Hardaway v. Secretary, 823 F.2d 922,
927-28 (6th Cir. 1987); and Varley, 820 F.2d at 770. Accordingly, Plaintiff’s claim fails.

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6. Plaintiff’s GAF Scores
Plaintiff maintains that the ALJ failed to properly evaluate his mental impairments and
resulting functional limitations by failing to mention his GAF score of 48, as reported by his
treating physician. Docket No. 14-1 at 10.
Defendant responds that the ALJ did mention this GAF score when he noted that records
“reflect [Plaintiff’s] GAF as a range between 40 and 55 . . . .” Docket No. 15 at 13, citing TR 24.
Defendant also argues that the Commissioner “has declined to endorse GAF scores as indicative
of Social Security disability.” Id.
Regarding Plaintiff’s GAF scores, the ALJ stated as follows:
The medical reports from Stephen Humble, M.D. and Martha
Ainsworth, LCSW reflect the claimant’s GAF as a range between
40 and 55, which is indicative of serious symptoms; however, the
Administrative Law Judge notes that the Commissioner has
declined to endorse the GAF scale for “use in the Social Security
and SSI disability programs,” and has indicated that GAF scores
have no “direct correlation to the severity requirements of the
mental disorders listing.” See 65 Fed. Reg. 50746, 50764-65 (Aug.
21, 2000). Also see, DeBoard v. Barnhart, No. 05-6854 (6th Cir.
Dec 15, 2006). (Exhibits 9F and 13F). Therefore, the underlying
findings of the medical and non-medical evidence are found to be
more relevant in determining the claimant’s residual functional
capacity than a GAF score, which lacks reliability in disability
determinations.
TR 24.
As can be seen, the ALJ was aware of Plaintiff’s GAF score, and explained his rationale
for not relying upon it. Id. Additionally, the Sixth Circuit does not require that an ALJ consider
a GAF score to be determinative of disability. See, e.g., Kennedy v. Astrue, 247 Fed. Appx. 761,

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766 (6th Cir. 2007). In Kennedy v. Astrue, the court stated:
GAF is a clinician’s subjective rating of an individual’s overall
psychological functioning. A GAF score may help an ALJ assess
mental RFC, but it is not raw medical data. Rather, it allows a
mental health professional to turn medical signs and symptoms
into a general assessment, understandable by a lay person, of an
individual’s functioning.
Furthermore, the Commissioner “has declined to endorse the
[GAF] score for ‘use in the Social Security and SSI disability
programs,’ and has indicated that [GAF] scores have no ‘direct
correlation to the severity requirements of the mental disorders
listings.’”
Id (citations omitted).
It is clear from the ALJ’s detailed, articulated rationale that he properly considered all of
the medical and testimonial evidence of record, including Plaintiff’s GAF scores, when
determining that Plaintiff was not disabled for the reasons discussed above. Because there is
substantial evidence to support such a finding, the ALJ’s determination must stand.
IV. RECOMMENDATION
For the reasons discussed above, the undersigned recommends that Plaintiff’s Motion for
Judgement on the Administrative Record be DENIED, and that the decision of the
Commissioner be AFFIRMED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any

37

response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

________________________________
E. CLIFTON KNOWLES
United States Magistrate Judge

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