Robinson v. Social Security Administration

Filing 25

MEMORANDUM OPINION OF THE COURT. Signed by Magistrate Judge Barbara D. Holmes on 6/17/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SHAWANA K. ROBINSON

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)
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v.
CAROLYN W. COLVIN
Acting Commissioner of
Social Security

No. 3:12-0441
Magistrate Judge Holmes

MEMORANDUM
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain
judicial review of the final decision of the Social Security Administration (“Commissioner”)
denying Plaintiff’s claim for a period of disability and Disability Insurance Benefits (“DIB”), as
provided under the Social Security Act (“the Act”).1 The case is currently pending on Plaintiff’s
motion for judgment on the administrative record (Docket Entry No. 14), to which Defendant has
responded (Docket Entry No. 17).

This action is before the undersigned for all further

proceedings pursuant to the consent of the parties and the District Judge in accordance with
28 U.S.C. § 636(c) (Docket Entry No. 24).
Upon review of the administrative record as a whole and consideration of the parties’
filings, Plaintiff’s motion is DENIED, and the decision of the Commissioner is AFFIRMED.

I. INTRODUCTION
Plaintiff filed an application for a period of disability and DIB on June 27, 2008. See
Transcript of the Administrative Record (Docket Entry No. 10), at 19, 61-62, 101.2 She alleged a
1

Plaintiff states in her brief that the Commissioner also determined that she was not entitled to
Supplemental Security Income (“SSI”), although there is no other indication in the record that Plaintiff
applied for SSI.
2
The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding page number(s) as numbered in large black print on the bottom right
corner of each page. All other filings are hereinafter referenced by the abbreviation “DE” followed by the
corresponding docket entry number and page number(s) where appropriate.

1

disability onset date of February 16, 2007. AR 37, 61-62. Plaintiff asserted that she was unable
to work because of fibromyalgia, carpal tunnel syndrome, bursitis, pain and numbness in
multiple body areas, back pain, arthralgia, concentration problems, memory problems, and
bipolar disorder. AR 61-62, 66, 156.
Plaintiff’s applications were denied initially and upon reconsideration. AR 61-66, 68-69.
Pursuant to her request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Todd Spangler on August 31, 2010.
AR 33. On September 27, 2010, the ALJ denied the claim. AR 16-27. On March 27, 2012, the
Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (AR 1-3), thereby
making the ALJ’s decision the final decision of the Commissioner. This civil action was
thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).

II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on September 27, 2010. AR 16. Based upon the
record, the ALJ made the following enumerated findings:
1.
The claimant last met the insured status requirements of the Social
Security Act on December 31, 2009.
2.
The claimant did not engage in substantial gainful activity during the
period from her alleged onset date of February 16, 2007 through her date last
insured of December 31, 2009 (20 CFR 404.1571 et seq.).
3.
Through the date last insured, the claimant had the following severe
impairments: fibromyalgia, bursitis, carpal tunnel syndrome, and bipolar disorder
(20 CFR 404.1520(c)).
***
4.
Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526).
***
5.
After careful consideration of the entire record, I find that, through the
date last insured, the claimant had the residual functional capacity to perform

2

medium work as defined in 20 CFR 404.1567(c) except that she is limited to
occasional handling and fingering; can only perform unskilled work; can only
have occasional contact with the public, coworkers, and supervisors; and cannot
work in an environment requiring production-paced work.
***
6.
Through the date last insured, the claimant was capable of performing past
relevant work as a parking lot attendant. This work did not require the
performance of work related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565).
***
7.
The claimant was not under a disability, as defined in the Social Security
Act, at any time from February 16, 2007, the alleged onset date, through
December 31, 2009, the date last insured (20 CFR 404.1520(f)).
AR 21-27.

III. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of the administrative record. Accordingly, the Court will discuss those
matters only to the extent necessary to analyze the parties’ arguments.

IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court upon judicial review are: (i) whether the decision of the
Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made
legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). See Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining
substantial evidence standard in the context of Social Security cases); Kyle v. Comm’r of Soc.
Sec., 609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’s decision must be affirmed if it is
supported by substantial evidence, “even if there is substantial evidence in the record that would
have supported an opposite conclusion.” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
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Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); Jones v. Comm’r of
Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
Substantial evidence is defined as “more than a mere scintilla” and “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L.
Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v.
Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting
language substantially similar to that in Richardson).
The Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions
of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v.
Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit
findings and determination unless the record as a whole is without substantial evidence to
support the ALJ’s determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).

B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing an entitlement to benefits by proving
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. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by medically
acceptable clinical and laboratory diagnostic techniques.

See 42 U.S.C. §§ 432(d)(3) and

1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), and 404.1513(d). “Substantial gainful activity”
not only includes previous work performed by the claimant, but also, considering the claimant’s

4

age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which the
claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired
if she applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s
alleged disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that she is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that she suffers from a severe impairment that meets the twelve
month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has
satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless
of age, education or work experience, if the impairment at issue either appears on the regulatory
list of impairments that are sufficiently severe as to prevent any gainful employment or equals a
listed impairment. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R.
§§ 404.1520(d), 416.920(d).

A claimant is not required to show the existence of a listed

impairment in order to be found disabled, but such showing results in an automatic finding of
disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122
(6th Cir. 1989).
If the claimant’s impairment does not render her presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to her past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant]
can still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1). In determining a claimant’s
RFC, for purposes of the analysis required at steps four and five, the ALJ is required to consider
the combined effect of all the claimant’s impairments, mental and physical, exertional and

5

nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen,
853 F.2d 483, 490 (6th Cir. 1988). At the fourth step, the claimant has the burden of proving an
inability to perform past relevant work or proving that a particular past job should not be
considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot
satisfy the burden at the fourth step, disability benefits must be denied because the claimant is
not disabled. Combs, supra.
If a claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quoting Walters v. Comm’r of Soc. Sec., 402 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a claimant can perform. Longworth, 402
F.3d at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981),
cert. denied, 461 U.S. 957, 103 S. Ct. 2428. 77 L. Ed. 2d 1315 (1983) (upholding the validity of
the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden
under appropriate circumstances). Even if the claimant’s impairments prevent the claimant from
doing past relevant work, if other work exists in significant numbers in the national economy that
the claimant can perform, the claimant is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 652 (6th Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,
1028-29 (6th Cir. 1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir.
1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation
process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v.
Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the
evaluative process is appropriate in some circumstances).

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C. The ALJ’s Five -Step Evaluation of Plaintiff
In the instant case, the ALJ resolved the Plaintiff’s claim at step four of the five-step
process. The ALJ found that Plaintiff met the first two steps, but found at step three that Plaintiff
was not presumptively disabled because she did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. AR 21-22. At step four, the ALJ found that Plaintiff
was able to perform past relevant work as a parking lot attendant (AR 25), thus resulting in a
finding of “not disabled.” Despite this finding, the ALJ proceeded to step five for alternative
findings, at which point the ALJ found that Plaintiff’s RFC allowed her to perform medium work
as defined in 20 C.F.R. 404.1567(c), except she is limited to occasional handling and fingering,
can only performed unskilled work and have occasional contact with the public, coworkers, and
supervisors, cannot work in an environment requiring production-paced work, and that
considering her age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the regional and national economy that Plaintiff can perform. AR 25-27.

D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by: (1) failing to discuss the medical records from
Dr. Christian Vissers, M.D. and Leigh Powers, MSN; and (2) making a conclusory finding that
Plaintiff’s impairments did not meet a listed impairment. DE 14 at 5, 9.3 Plaintiff therefore
requests that this case be reversed and judgment entered in favor of Plaintiff pursuant to sentence
four of 42 U.S.C. § 405(g), or, alternatively, remanded for rehearing. Id. at 15.
Sentence four of 42 U.S.C. § 405(g) states the following:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing.
3

Plaintiff lists five separate assertions of error (DE 14 at 5-15), although the first four pertain to the
medical records of Dr. Vissers and Ms. Powers. The Court will therefore address all of these as part of
the first assertion of error. Id. at 5.

7

42 U.S.C. § 405(g), 1383(c)(3).

“In cases where there is an adequate record, the

[Commissioner’s] decision denying benefits can be reversed and benefits awarded if the decision
is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and
evidence to the contrary is lacking.” Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
Furthermore, a court can reverse the decision and immediately award benefits if all essential
factual issues have been resolved and the record adequately establishes a claimant’s entitlement
to benefits. Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala,
25 F.3d 316, 318 (1994). Plaintiff’s assertions of error are addressed below.4
1. Whether the ALJ erred by failing to discuss the medical records involving Plaintiff’s
treatment with Dr. Christian Vissers and Leigh Powers, MSN.
Plaintiff contends that the ALJ committed reversible error by failing to mention the
medical opinions of Dr. Vissers and Ms. Powers, which she claims violates the mandate found in
SSR 96-5p that the ALJ weigh medical source statements and “provid[e] appropriate
explanations for accepting or rejecting such opinions.” DE 14 at 8. Plaintiff argues that this
failure also violates the provisions of 20 C.F.R. § 404.1527 that require the ALJ to provide “good
reasons” for the weight given to the opinion of the treating physician. DE 14 at 5-6.5 Plaintiff
similarly argues that the ALJ’s failure to discuss these records violates SSR 96-2p, which
requires that the adjudicator provide “specific reasons for the weight given to the treating
source’s opinion[.]”

Plaintiff thus effectively contends that Dr. Vissers and Ms. Powers

represent treating sources under the provisions of the Act.6

4

See n.3.
Plaintiff actually cites 20 C.F.R. § 416.927, which addresses applications for Supplemental Security
Income (“SSI”). Because Plaintiff has not applied for SSI, the Court refers to 20 C.F.R. § 404.1527,
which is the equivalent regulation pertaining to applications for DIB.
6
Plaintiff explicitly claims that Ms. Powers is a “treating physician” later in her brief. DE 14 at 14.
5

8

Despite Plaintiff’s argument, the Court does not agree that Dr. Vissers and Ms. Powers
qualify as “treating sources” under 20 C.F.R. § 404.1527. Plaintiff cites just two office visits in
support of her argument that Dr. Vissers represents a treating source. DE 14 at 6. The Court
notes that Plaintiff was referred to Dr. Vissers by Dr. Melissa Hixson, who is identified in the
record as Plaintiff’s primary care physician. AR 509, 523. Dr. Vissers, an orthopedic surgeon,
saw Plaintiff on these two occasions for evaluation of alleged pain in the lower back and left hip.
AR 509. The note from the second visit indicates that Dr. Vissers referred Plaintiff for an MRI
with instruction for follow-up care after the MRI was completed.

AR 508.

There is no

indication, however, that Plaintiff received any additional treatment from Dr. Vissers. The Sixth
Circuit has noted that, “depending on the circumstances and the nature of the alleged condition,
two or three visits often will not suffice for an ongoing treatment relationship.” Kornecky v.
Comm’r of Soc. Sec., 167 F. App’x 496, 507 (6th Cir. 2006). Plaintiff does not contend that she
treated with Dr. Vissers beyond these two visits in 2007. AR 508-09.
Additionally, and more importantly, Dr. Vissers has not provided an opinion regarding
the severity of Plaintiff’s alleged condition that would necessitate further scrutiny by the ALJ.
Not surprisingly, Plaintiff’s brief fails to identify a specific opinion from Dr. Vissers that she
claims was disregarded by the ALJ. In fact, Plaintiff fails to discuss any of the treatment
provided by Dr. Vissers. She instead contends that the ALJ’s decision should be reversed on
procedural grounds. However, the Sixth Circuit has noted that “[n]o principle of administrative
law or common sense requires us to remand a case in quest of a perfect opinion unless there is
reason to believe that remand might lead to a different result.” Kornecky, 167 F. App’x at 507
(quoting Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)). In the most recent note,
Dr. Vissers assessed Plaintiff with bursitis, low back pain without evidence of neural

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impingement, and “possible” peripheral neuropathy. AR 508. There is no opinion in this note
regarding any functional limitations caused by this diagnosis, and thus nothing that might lead
the ALJ to a different conclusion regarding Plaintiff’s condition.
20 C.F.R. § 404.1527(c) clearly states: “We will always give good reasons . . . for the
weight we give to your treating source’s opinion” (emphasis added). The mere diagnosis of an
impairment “says nothing about its severity of the condition.” Higgs v. Bowen, 880 F.2d 860,
863 (6th Cir. 1988). See also Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 551 (6th Cir. 2014)
(“[D]isability is determined by the functional limitations imposed by a condition, not the mere
diagnosis of it.”) (internal citation omitted). Here, Dr. Vissers provided no opinion regarding the
severity of any condition. Dr. Vissers instead provided one definitive diagnosis (bursitis), one
possible diagnosis (peripheral neuropathy),7 and identified a symptom (low back pain). She then
referred Plaintiff for an MRI of her lumbar spine and a set of rheumatology labs to identify the
causes of Plaintiff’s low back pain and neuropathy, respectively. AR 508. Plaintiff’s argument
that the ALJ violated SSR 96-5p, which holds that adjudicators “must weigh medical source
statements under the rules set out in 20 C.F.R. § 404.1527 . . . ,” is therefore inapplicable as there
is no such medical source statement to weigh in this matter. Moreover, even if it is accepted that
Dr. Vissers’ diagnosis of bursitis represents an “opinion” under 20 C.F.R. § 404.1527(c), the
ALJ determined that this condition represented a severe impairment. AR 21.
Plaintiff’s argument that the ALJ violated SSR 96-2p by failing to discuss the opinion of
Nurse Leigh Powers also fails because Ms. Powers represents an “other source” that is not
considered an “acceptable medical source.” See 20 C.F.R. § 404.1513(d). This is significant
because only acceptable medical sources can provide medical opinions and be considered
Dr. Vissers also indicated that her diagnosis of “possible” peripheral neuropathy was based solely on
Plaintiff’s subjective complaints, as she could not detect any focal neurologic deficit. AR 508.
7

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treating sources, and only opinions from acceptable treating sources may be accorded controlling
weight. SSR 06-03p, 2006 WL 2329939, at *2. See also Swafford v. Colvin, No. 3:12-cv-00614,
2015 WL 1931438, at *8 (M.D. Tenn. Apr. 28, 2015) (Holding that a treating nurse “is not an
acceptable medical source, and so her assessment is not due any particular deference or
procedural protection.”). Therefore, Plaintiff’s argument that Ms. Powers represents a “treating
source” under 20 C.F.R. § 404.1527 and SSR 96-2p is without merit.
Plaintiff further argues that the ALJ’s failure to discuss the records from LifeCare Family
Services (“LifeCare”) documenting her treatment with Ms. Powers represents reversible error
because the ALJ’s finding that Plaintiff is only moderately impaired with respect to social
functioning “is thoroughly inconsistent with the GAF score assigned to [Plaintiff] by
LifeCare[.]”8 DE 14 at 6. This argument also fails for multiple reasons.
Plaintiff claims, without citation to the record or any other source, that the “longitudinal
record of [Plaintiff’s] global assessment of functioning score (“GAF”) shows a drop in her
functioning which takes her from a serious impairment to a marked impairment.” Id. (emphasis
in original). However, this is not an accurate representation of the relevant metric. A GAF score
between 41 and 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).” Kornecky, 167 F. App’x at 503 (quoting
DSM–IV–TR at 34 (capitalization and boldface omitted)). A GAF score between 51 and 60
indicates “[m]oderate 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 co-workers).” Id. The record indicates that Plaintiff was assigned a GAF
Although Plaintiff fails to cite or discuss the “moderately impaired” finding, the Court assumes that
Plaintiff is referring to the ALJ’s statement that, “[i]n social functioning, the claimant had moderate
difficulties.” AR 22.
8

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score of 51 at LifeCare on numerous occasions (AR 300, 302, 304, 306, 308), and a range of
GAF scores in the 40s during other sessions. AR 414, 417, 420, 512-22. There is no indication
that Plaintiff was assigned a GAF score demonstrating “marked impairment,” as there is no
designation of “marked impairment” based on a GAF score.9 See DSM–IV–TR at 34.
Furthermore, as discussed in greater detail below, there is no evidence that an acceptable medical
source ascribed a GAF score to Plaintiff at any time during her treatment at LifeCare.
The Sixth Circuit has noted the following with respect to GAF scores: “[T]he
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.” Kennedy v. Astrue, 247 F. App’x 761,
766 (6th Cir. 2007) (internal citations and quotations omitted). The Sixth Circuit has also held
that “the failure to reference a [GAF] score is not, standing alone, sufficient ground to reverse a
disability determination.” DeBoard v. Comm’r of Soc. Sec., 211 F. App’x 411, 415 (6th Cir.
2006) (citing Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002)). See also
Keeler v. Comm’r of Soc. Sec., 511 F. App’x 472, 474 (6th Cir. 2013) (“[T]he ALJ was not
required to consider [Plaintiff’s] GAF scores . . . and, in any case, the scores were not sufficient
to undermine the ALJ’s analysis.”) (internal citations omitted). Moreover, there is a difference
“between what an ALJ must consider and what an ALJ must discuss in a written opinion.”
Adams v. Comm’r of Soc. Sec., No. 4:13-CV-22, 2014 WL 3368692, at *11 (E.D. Tenn. July 9,
2014) (quoting Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. 2002)). Thus,
the ALJ was not required to discuss the GAF scores assigned to Plaintiff at LifeCare.
9

Plaintiff appears to conflate the GAF designations with the paragraph B criteria contained in Listing
12.04, which describe an individual who has “[m]arked restriction of activities of daily living,” “[m]arked
difficulties in maintaining social functioning,” or “[m]arked difficulties in maintaining concentration,
persistence, or pace.” 20 CFR Part 404, Subpart. P, Appendix 1 § 12.04. Indeed, later in her brief
Plaintiff argues that she meets Listing 12.04 based on these criteria. DE 14 at 13.

12

It is undisputed that the ALJ failed to discuss the records pertaining to Plaintiff’s
treatment with Ms. Powers. The Court agrees with Defendant, however, that this lack of
discussion represents harmless error. The ALJ discussed Plaintiff’s alleged mental impairments
in the opinion, including the findings of multiple acceptable medical sources.

AR 23-25.

Plaintiff emphasizes the significance of the GAF scores assigned by Ms. Powers (DE 14 at 6-7),
but points to no authority that requires the ALJ to consider a GAF score in his decision. See
Kornecky, 167 F. App’x at 511 (“[W]e are not aware of any statutory, regulatory, or other
authority requiring the ALJ to put stock in a GAF score in the first place.”). Plaintiff’s position
is further undermined by the fact that the GAF scores were not provided by an acceptable
medical source.
Additionally, even if Ms. Powers represented an acceptable medical source, there are no
opinions contained in her records that the ALJ could have discussed or analyzed in the opinion.
The records simply identify Plaintiff’s diagnoses, including a primary diagnosis of bipolar
disorder (AR 512), which the ALJ determined to be a severe impairment (AR 21), followed by
Ms. Powers’ “clinical observations” that simply document the Plaintiff’s complaints. AR 51222. During the last documented visit with Ms. Powers, such observations included Plaintiff’s
complaint of “difficulty with coping with dysfunctional people in her life,” and her ability to
“complete her own [activities of daily living] without assistance.” AR 512. These observations
do not establish a medical opinion regarding severity, nor any functional limitations associated
with Plaintiff’s alleged condition.
Only an acceptable medical source can provide a medical opinion that establishes the
existence of a medically determinable impairment. SSR 06-03p, 2006 WL 2329939, at *2.
Plaintiff points to two visits with Dr. Vissers as evidence in support of her argument, but these

13

records do not include an opinion as to the severity of Plaintiff’s alleged condition. Plaintiff also
relies on multiple “medication management” visits with Ms. Powers, AR 512-22, but these
records similarly lack an opinion regarding the severity of Plaintiff’s alleged condition.
Additionally, Ms. Powers is not an acceptable medical source, and therefore no opinion she
might have had is entitled to any special consideration. See Hill v. Comm’r of Soc. Sec., 560 F.
App’x 547, 550 (6th Cir. 2014) (“[O]ther-source opinions are not entitled to any special
deference.”). While it might be ideal for an ALJ to articulate his reasons for crediting or
discrediting each medical opinion, it is well settled that he can consider all of the evidence
without directly addressing in his written decision every piece of evidence submitted by a party.
Kornecky, 167 F. App’x at 507-08 (internal citation omitted). Accordingly, the Court finds that
the ALJ’s failure to discuss the records of Dr. Vissers and Ms. Powers represents harmless error.
2. The ALJ’s finding that Plaintiff’s impairments did not meet or equal Listing 12.04.
Plaintiff next argues that the ALJ improperly failed to find that Plaintiff’s alleged
condition met Listing 12.04, which involves affective disorders. Plaintiff focuses her argument
on the paragraph B criteria contained in Listing 12.04, stating that she “experienced marked
difficulties in activities of daily living, social functioning as well as marked deficiencies in
persistence and pace.” DE 14 at 13. Plaintiff faults the ALJ’s reliance on the opinion of
Dr. Robert de la Torre, who performed a psychological evaluation in September of 2008 and
found only mild to moderate difficulties in these areas (AR 396), because Dr. de la Torre “only
examin[ed] [Plaintiff] once, for less than one hour[.]” DE 14 at 13. Plaintiff attempts to rebut
the findings of Dr. de la Torre by reciting portions of the record documenting her treatment at
LifeCare.

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After recounting much of her treatment at LifeCare, Plaintiff returns to her previous
argument that the ALJ failed to give controlling weight to Plaintiff’s “treating physicians,” Holly
Barruso, Melinda Stahley, and Leigh Powers. DE 14 at 14. Plaintiff points to the decision in
Johnson v. Comm’r of Soc. Sec., in which the Sixth Circuit reversed the Commissioner’s ruling
based on the ALJ’s mischaracterization and ultimate rejection of the opinion of the subject
claimant’s treating physician, Dr. Emily Rayes-Prince. Johnson v. Comm’r of Soc. Sec., 652
F.3d 646 (6th Cir. 2011). Plaintiff incorrectly argues, however, that the scenario in Johnson is
analogous to her claim. In Johnson, the Sixth Circuit noted that the ALJ’s stated reasons for
rejecting the opinion of Dr. Rayes-Prince were “simply inaccurate.” Johnson, 652 F.3d at 652.
The Sixth Circuit also noted that in addition to being a licensed physician and acceptable medical
source, Dr. Rayes-Prince was a specialist with respect to the claimant’s alleged medical
condition, and that opinions from specialists are given more weight than those provided by nonspecialists. Id. at 651.
Conversely, as previously discussed, Plaintiff has not presented a medical opinion from
an acceptable medical source. Neither Holly Barruso nor Melinda Stahley is an acceptable
medical source under 20 C.F.R. § 404.1513, despite Plaintiff’s numerous references to
“Dr. Holly Barruso” and “Dr. Melinda Stahley” in her brief. DE 14 at 10-11, 14. Plaintiff’s
brief also refers to Ms. Stahley as her treating “psychiatrist” (Id. at 10), and Ms. Barruso as
“Dr. Holly Barruso, MD[.]” Id. at 14. Despite these references, Ms. Barruso has specifically
identified herself as a therapist, not a medical physician. AR 311. Additionally, there is no
evidence in the administrative record indicating that Melinda Stahley has identified herself as a
physician. Plaintiff cites just two notes documenting Plaintiff’s interactions with Ms. Stahley:
one on April 29, 2008, during which Plaintiff underwent “Therapy/Med[ication] Management”

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(AR 344), and one on May 21, 2008, during which Plaintiff was seen for “Medication
Management.” AR 356. Both notes contain a digital signature that reads, “Provider: Melinda
Stahley.” AR 346, 356. None of her records characterize her as a medical physician. In
contrast, every signature from a medical physician in the administrative record includes the
designation, “M.D.” following the physician’s name. AR 315, 323, 376, 383, 391, 409-10, 442,
444, 447, 456-57, 473, 487-88, 503, 508, 527-32.

While the Court assumes Plaintiff’s

misidentification of Ms. Stahley and Ms. Barruso was unintentional, it is necessary to make this
distinction for purposes of evaluating Plaintiff’s argument under the relevant regulations.
Notwithstanding this mislabeling, Plaintiff argues that the LifeCare records demonstrate
“marked difficulties” in her activities of daily living, social functioning, and mental functioning.
DE 14 at 13. Plaintiff effectively claims that these records outweigh the opinion of Dr. de la
Torre, a clinical psychologist, who stated the following after finding that Plaintiff suffered from
bipolar disorder and alcohol abuse:
[Plaintiff’s] psychiatric disorder is likely to cause: mild difficulties in
understanding, remembering, and carrying out short, simple instructions
accurately; mild to moderate difficulties in remembering and carrying out detailed
instructions accurately, interacting appropriately and communicating effectively
with others, and performing daily routine activities; and moderate difficulties in
coping with stressful situations and adjusting to change.
AR 396. This opinion was given “considerable weight” by the ALJ. AR 25. Plaintiff notes that
the ALJ did not specifically discuss the portions of Dr. de la Torre’s report involving her
activities of daily living. DE 14 at 12. This is immaterial, however, as the ALJ clearly reviewed
Dr. de la Torre’s report and discussed his findings at length in the opinion.

AR 23-25.

Furthermore, as noted by Defendant, an ALJ is not required to discuss all of the evidence
submitted, and his failure to cite specific evidence does not indicate that it was not considered.

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Daniels v. Comm’r of Soc. Sec., 152 F. App’x 485, 489 (6th Cir. 2005) (internal citation
omitted).
Nevertheless, Plaintiff argues that the opinions of the LifeCare providers, including
Ms. Barruso, Ms. Stahley, and Ms. Powers, should have been given more weight because such
providers treated Plaintiff “dozens of times” for over a year. DE 14 at 14. However, as
previously discussed, none of the providers at LifeCare represents an acceptable medical source.
The Sixth Circuit has stated that the opinion of an “other source,” which describes all of the
providers with whom Plaintiff treated at LifeCare, cannot be given controlling weight. Hill, 560
F. App’x at 550. This rule notwithstanding, even if these providers were considered acceptable
medical sources, Plaintiff fails to identify a medical opinion that details the functional impact of
her alleged conditions. She instead lists her symptoms as described to her various LifeCare
providers.

DE 14 at 9-14.

Plaintiff’s brief cites two notes documenting her

“Therapy/Med[ication] Management” visits with Ms. Stahley (AR 344, 356), but she simply
recites her own statements to Ms. Stahley regarding her emotional stability. DE 14 at 10.
Notably, none of the records documenting Plaintiff’s three visits with Ms. Stahley includes an
opinion as to any functional limitations.

AR 344-46, 356, 363-64.

Further, as noted by

Defendant, Ms. Stahley’s records only include diagnoses that do not contradict the findings of
the ALJ. DE 17 at 18-19.
Plaintiff additionally points to a June 5, 2008 letter from Ms. Barruso, which provides a
vague assessment as to the impact of her impairment:
In addition to her emotional issues, [Plaintiff] also suffers from Chronic Pain
which has exacerbated her depression and impeded her ability to maintain steady
employment. This has caused significant financial stress and she recently lost her
home, having to move back in with family until her situation is stabilized. Her
medical condition also limits her mobility and restricts her social activity and

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family life, thus she is socially isolated and lacks motivation to participate in
social/recreational activities.
AR 311. As discussed by the ALJ, Ms. Barruso suggests that Plaintiff is unable to work due to a
combination of physical and mental disabilities. AR 24. However, such a determination as to a
claimant’s functional capacity to do work is reserved for the ALJ, not a medical provider.
Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010) (citing 42 U.S.C.
§ 432(d)(5)(B)). See also Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 578 (6th Cir. 2009)
(“Although physicians opine on a claimant’s residual functional capacity to work, ultimate
responsibility for capacity-to-work determinations belongs to the Commissioner.”). Moreover,
Ms. Barruso’s statement that “[c]hronic [p]ain . . . has exacerbated [Plaintiff’s] depression and
impeded her ability to maintain steady employment” represents a conclusory statement that
provides no insight as to how Plaintiff is actually limited. See Hill, 560 F. App’x at 551
(“[D]isability is determined by the functional limitations imposed by a condition, not the mere
diagnosis of it.”). See also Carney v. Colvin, No. 3:12-CV-00744, 2015 WL 5089783, at *8
(M.D. Tenn. Aug. 17, 2015) (Upholding ALJ’s decision to discount opinion of examining
physician based on a conclusory assertion of claimant’s inability to work that “fail[ed] to give
specifics as to what actual limitations were imposed on [claimant’s] functional ability.”). As
such, the Court finds no error in the ALJ’s decision to give little weight to this opinion. AR 24.
A claimant’s condition may or may not affect her functional capacity to do work; one
does not necessarily establish the other. Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429
(6th Cir. 2007) (internal citation omitted). In the first four steps of the evaluation process
contemplated by 20 C.F.R. § 404.1520, including the requirement at step three that the ALJ
determine whether a claimant’s impairment meets or medically equals a listed impairment, it is
the claimant’s burden to prove the existence and severity of limitations caused by her alleged

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impairments. Jones, 336 F.3d at 474. Here, Plaintiff fails to identify any opinion from an
acceptable medical source to support her claim that she is functionally unable to do work, let
alone her suggestion that her impairments meet the requirements of the paragraph B criteria of
Listing 12.04.

The Court therefore finds that substantial evidence supports the ALJ’s

determination that Plaintiff’s condition does not meet Listing 12.04.

V. CONCLUSION
For the above stated reasons, Plaintiff’s motion for judgment on the administrative record
(DE 14) is DENIED.
An appropriate Order will accompany this memorandum.

__________________________
BARBARA D. HOLMES
United States Magistrate Judge

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