Holt v. Social Security Administration

Filing 18

CORRECTED REPORT AND RECOMMENDATION re 14 MOTION for Judgment on the Record. The Magistrate Judge RECOMMENDS that the plaintiff's motion for judgment on the administrative record be DENIED, and the Commissioner's decision be AFFIRMED. Signed by Magistrate Judge Joe Brown on 8/8/2013. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TROY D. HOLT,

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PLAINTIFF,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION
DEFENDANT.

No. 3:12-00445
Judge Nixon/Brown

To: The Honorable Judge John T. Nixon, Senior United States District Judge
CORRECTED REPORT AND RECOMMENDATION
For the reasons explained herein, the Magistrate Judge RECOMMENDS that the
plaintiff’s motion for judgment on the administrative record (the record) be DENIED, and the
Commissioner’s decision be AFFIRMED.
I.

Procedural History

The plaintiff protectively filed for Disability Insurance Benefits (DIB) on April 07, 2009
(DE 12, pp. 123-24; 129). 1 He claimed an onset date of March 17, 2008 (DE 12, p. 123). The
plaintiff claimed disability due to back problems and numbness in his left leg (DE 12, p. 133).
On June 16, 2009, the Commissioner denied the DIB claim (DE 12, pp. 65-68). On July 06,
2009, the plaintiff timely filed for reconsideration (DE 12, p. 71). On August 21, 2009, the
Commissioner again denied the claims (DE 12, pp. 74-76). On September 03, 2009, the plaintiff
timely requested a hearing before an Administrative Law Judge (ALJ) (DE 12, pp. 78-79). On
November 23, 2010, the plaintiff appeared before the ALJ, David Ettinger (DE 12, pp. 38-62).
1 Page numbers referring to the record herein reflect the Bates Stamp.

Page 1 of 30

Also appearing were Rebecca Williams, the vocational expert (VE), and Grayson Cannon, the
plaintiff’s representative, (DE 12, p. 38). On December 09, 2010, the ALJ decided that the
plaintiff was not disabled under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 416(i)
and 423(d) (DE 12, pp. 19-32). On December 17, 2010, the plaintiff timely requested that an
Appeals Council (AC) review the decision (DE 12, p. 15). On April 10, 2012, an AC denied the
request (DE 12, pp. 1-6 ). On May 03, 2012, the plaintiff timely brought the instant action (DE
1). On July 16, 2012, the defendant filed his answer and the record (DE 11-12). On August 15,
2012, the plaintiff filed the motion for judgment on the record (DE 14) and memorandum in
support of the motion (DE 15) pursuant to 42 U.S.C. §§ 405(g) and 1383(c), seeking judicial
review of the final decision of the Social Security Administration (the SSA), through its
Commissioner, as set out by the ALJ. On September 14, 2012, the defendant filed a response in
opposition (DE 16). The matter is now properly before the Court.
II.

Review of the Record

A.

Relevant Medical Evidence

In 2002 and 2003, the plaintiff presented to Dr. Paul Parsons with pain and numbness in
his left leg (DE 12, pp. 235-39). The plaintiff had been under the care of Dr. William Halford
(DE 12, p. 235). On June 23, 2003, Dr. Parsons performed a laminectomy2 and fusion surgery at
lumbar levels L5-S1 to treat slippage of the vertebra (DE 15, p. 239). In October 2003, the
plaintiff returned to full work and was “having no complaints of pain….” (DE 12, pp. 240-41).
Dr. Halford saw the plaintiff on May 12 and 23, 2006; July 27 and 28, 2006; January 23,
March 30, August 10, and October 26, 2007 for primary care issues (DE 12, pp. 201-13).

2 Dorland’s Illustrated Medical Dictionary 1003 (Elsevier 2012) (1900) (Laminectomy: “Excision of the posterior
arch of a vertebra.”).

Page 2 of 30

On February 07, 2008, the plaintiff presented to Dr. Halford, who noted obesity, high
cholesterol, allergies, and chronic back pain (DE 12, p. 199). On February 07, 2008, the plaintiff
also presented to Dr. Parsons with numbness and tingling in his left leg (DE 12, p. 243). Dr.
Parsons treated the plaintiff with medication (DE 12, p. 243). On February 14, 2008, the plaintiff
presented to Dr. Klekamp, a physician in Dr. Parsons’ medical group, with worsened left leg
pain and numbness that had had become severe over the prior two weeks (DE 12, p. 244). Dr.
Klekamp noted mild degeneration at the vertebral level above the level of the previous surgery
and offered to “take [the plaintiff] off work,” but the plaintiff declined (DE 12, p. 244). On
February 19, 2008, the plaintiff presented to Dr. Klekamp with worsening back pain and with
buttock pain (DE 12, p. 245). Dr. Klekamp refilled pain medication for the plaintiff and offered
the plaintiff a steroid injection, which the plaintiff declined (DE 12, p. 245).
On April 03, 2008, the plaintiff presented to Dr. Parsons, who indicated that the plaintiff
“may return to work on May 03, 2008....” (DE 12, pp. 297-98). On April 14, 2008, the plaintiff
presented to Dr. Parsons for a steroid injection to treat back and leg pain (DE 12, p. 232). On
April 30, 2008, Dr. Parsons indicated that the plaintiff should be excused from work “as
needed.” (DE 12, pp. 284-86).
On May 09, 2008, Dr. Parsons performed laminectomies at L4-L5 and foraminotomies 3
at L5 to treat spinal canal narrowing at those levels (DE 15, p. 282). On May 28, 2008, the
plaintiff presented to Dr. Parsons with “minor symptoms of nerve problems in the legs.” (DE 12,
p. 256). On June 26, 2008, the plaintiff presented to Dr. Parsons with no nerve symptoms and
occasional back pain (DE 12, p. 256). Dr. Parsons noted that he would be in favor of the plaintiff

3 Id. at 731 (Foraminotomy: “The operation of removing the roof of intervertebral foramina, done for the relief of
nerve root compression.”).

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getting a driving job, but that he did “not want [the plaintiff] doing anything that requires
bending, lifting, stooping or carrying with his back.” (DE 12, p. 256).
On August 07, 2008, the plaintiff reported to Dr. Parsons that he “helped a buddy in a
body shop recently and got away with it.” (DE 12, p. 257). Dr. Parsons provided the plaintiff
with a note indicating that the plaintiff could operate commercial vehicles (DE 12, p. 256). On
September 16, 2009, Dr. Parsons completed a form to indicate that the plaintiff was able to work
as of August 07, 2008 and could “return to full duty with no restrictions.” (DE 12, p. 252).
On February 09, 2009, an indiscernible provider in Dr. Parsons’ group wrote that the
plaintiff should be “off work for ten days.” (DE 12, p. 250). On March 26, 2009, the plaintiff
presented to Dr. Paul Buechel at the request of Dr. Parsons for muscle and nerve testing (DE 12,
pp. 301-06). The plaintiff presented with “numbness, weakness, and pain” in his left leg, back,
and hip, numbness in his arms, weakness in his left foot and lower leg, some numbness in the
right leg and foot, alteration in his gait, and pain in his right leg (DE 12, p. 301). The plaintiff
reported that the pain occurred on a daily basis (DE 12, p. 301). Dr. Buechel reported that, based
on the test results, the plaintiff’s arm numbness had an unknown cause and that the plaintiff may
be a candidate for pain management (DE 12, p. 304).
On September 03, 2009, the plaintiff presented to Dr. Parsons with a chief complaint of
numbness in his left leg and foot, but without pain (DE 12, p. 337). Dr. Parsons indicated that he
did not think there would be a solution to the plaintiff’s problem but did “encourage him to at
least get a consultation from a pain management group.” (DE 12, p. 337). On September 09,
2009, the plaintiff presented to Dr. Son Le (DE 12, pp. 323-25). Dr. Le ordered physical therapy,
further testing, and a narcotic pain management regimen (DE 12, pp. 324-25). From September
16 to November 20, 2009, the plaintiff completed weekly physical therapy (DE 12, pp. 361-71).
Page 4 of 30

On October 06, 2009, the plaintiff presented to Dr. Le with leg pain down to his foot and
Dr. Le prescribed an increase in the plaintiff’s neuropathic pain medication (DE 12, p. 356). On
October 27, 2009, Dr. Le completed a study in which he found normal results for both legs
except for “maybe a trace of…chronic left L5-S1 [nerve root damage].” (DE 12, p. 351).
On November 06, 2009, Dr. Halford completed a medical source statement in which he
noted that the plaintiff could, without stooping, frequently carry up to ten, occasionally carry
eleven to twenty, but never carry more than twenty pounds (DE 12, p. 340). Dr. Halford noted
that the plaintiff could sit, stand, or walk for five to ten minutes at a time without interruption,
could sit for two hours out of an eight hour day, could stand or walk for one hour out of an eight
hour day, could not be at work for eight hours, could use his hands, could operate foot controls
occasionally because of numbness in his feet, could rarely climb stairs or ramps, could never
climb ladders or scaffolds, could not balance, stoop, kneel, crouch, or crawl, had varying
environment limitations, and could not walk on uneven surfaces (DE 12, pp. 340-45).
On November 17, 2009, the plaintiff presented to Dr. Le with pain in his left leg and
neck, and Dr. Le prescribed pain medication (DE 12, p. 349-50). From March 25 to July 25,
2010, the plaintiff presented to Dr. John Faccia for pain management (DE 12, pp. 45, 374-432).
The plaintiff switched providers due to insurance loss (DE 12, p. 45). On May 6 and June 30,
2010, the plaintiff received nerve blocks to treat neuropathy and leg pain (DE 12, pp. 390, 405).
On January 24, 2011, Dr. Parsons wrote a letter to the plaintiff’s attorney and indicated
that “[h]aving already had two back operations and one unsuccessful return to work, I do not
believe at this time that [the plaintiff] is going to be able to hold down any type of employment
that requires any physical effort at all.” (DE 12, p. 433).

Page 5 of 30

B.

State Agency Medical Consultant Assessments

On June 16, 2009, Dr. George Cross III completed a Physical Residual Functional
Capacity (RFC) Assessment (DE 12, p. 317). He found that the plaintiff could occasionally lift
twenty pounds, frequently lift ten pounds, stand and/or walk, or sit for six hours of an eight hour
day, had no limitation on pushing or pulling, could occasionally climb a ramp or stairs, could
never climb a ladder, rope, or scaffolds, could balance and stoop frequently, could kneel and
crawl occasionally, had no communicative, visual, manipulative, or environmental limitations
(DE 12, pp. 311-14). Dr. Cross found that:
The alleged low back pain radiating down the left leg to the foot worsened by sitting,
standing, bending, and lying down is partially credible. The claimant had an LS-Sl fusion
in 2003 with good results. He developed recurrent symptoms for which he underwent an
L4-S decompressive procedure…The most current neurologic examination…is normal.
The alleged exertional and postural limitations and pain are therefore partially credible.
(DE 12, p. 314). Dr. Moore reviewed and affirmed this RFC determination (DE 12, p. 318). 4
C.
1.

Testimonial Evidence

Plaintiff and Witness Testimony

On November 23, 2010, the ALJ testified on direct examination by his representative,
Cannon (DE 12, p. 42). Cannon first gave an opening statement in which he indicated that the
plaintiff’s treating physician, Dr. Halford, had completed a medical source statement and the
evidence therein would prohibit the plaintiff from working full-time (DE 12, p. 42). The plaintiff
then testified that he was forty-seven years old (DE 12, p. 42). The plaintiff testified that he first
had back surgery in 2005 5 and returned to work afterwards, but that he needed a second surgery
in 2008 (DE 12, pp. 43-44). The plaintiff testified that he takes medication daily (DE 12, p. 43)

4 (DE 12, pp. 317-18) The record shows that Dr. Moore refers to the RFC determination from 06/06/09, which
seems to be an error since the RFC determination referred to therein was completed on 06/16/09.
5 (DE 12, p. 239) Plaintiff had back surgery first on June 23, 2003.

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and he went to pain management after his second surgery, where he received “Cymbalta and
stuff like it.” (DE 12, p. 44). The plaintiff testified that he took “Lortab and pain medications like
that.” (DE 12, p. 44). Cannon asked whether the plaintiff had side effects from his medication
and the plaintiff testified that he had loss of memory and instability when walking (DE 12, pp.
44-45). The plaintiff testified that Dr. Faccia 6 was currently treating him for pain management,
that Dr. Halford had been his primary doctor for ten or fifteen years, and that he was still under
the care of Dr. Halford in addition to Dr. Faccia (DE 12, pp. 45-46).
The plaintiff testified that he could sit for a few minutes at a time, that the pain in his left
leg and back was constantly present, and that his leg was “always numb.” (DE 12, pp. 46-47).
The plaintiff testified that he stopped taking Cymalta because of undesirable side effects and that
he did not believe the Cymbalta was helpful (DE 12, pp. 46-47). The plaintiff testified that he
was unable to lift heavy items, that his wife performed the household chores, and that he
normally took a daily nap (DE 12, pp. 47-48). The plaintiff testified about his daily activities,
stating, “I just hang out. I have a couple of friends and I usually sit around the house and watch
T.V. I will go eat lun[ch] with my friend occasionally in Fairview, which is just down the road
[ten miles] from my house.” (DE 12, pp. 47-48). The plaintiff testified that he was able to mow
his yard on a riding lawnmower, while medicated, for about thirty minutes (DE 12, p. 49).
The plaintiff testified that he had his General Education Degree (GED) (DE 12, p. 49).
The plaintiff testified that prior to his second surgery in 2008, he was working at Franklin Webb
Printing where he drove a truck, lifted up to seventy pounds, and pushed a cart with up to fifteen
hundred pounds of contents (DE 12, p. 50). The plaintiff testified that after the surgery in 2008,
he went through rehabilitative treatment and returned to work before being released (DE 12, p.

6 (DE 12, p. 45) Dr. Faccia is incorrectly spelled “Dr. Fasha” in the transcript from the hearing.

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44). However, the plaintiff testified that Franklin Webb Printing did not have any “easy work”
that he could perform and that he was terminated (DE 12, p. 44). The plaintiff testified that he
then briefly worked as a floor sweeper and as a truck driver until his “back went out again” and
his doctor indicated that he could no longer work as a truck driver (DE 12, p. 51).
After Cannon’s questioning, the ALJ questioned the plaintiff. He asked the plaintiff why
he had been unable to return to his job at Franklin Webb Printing after the surgery in 2008 and
why he was ultimately terminated (DE 12, p. 51). The plaintiff testified that despite being “100
percent released” by his physician to perform his previous work, and despite not being restricted
to light work, the owner of the printing company indicated that there was no light work available
and that the plaintiff was therefore terminated (DE 12, pp. 51-52). The plaintiff testified that he
had never been to the Division of Vocational Rehabilitation (DE 12, p. 53). The ALJ asked the
plaintiff whether he had considered jobs with “very few physical demands.” (DE 12, p. 54). The
plaintiff testified that he had not (DE 12, p. 54).
Cannon resumed questioning the plaintiff and asked whether the plaintiff would have
difficulty performing a “simple little job that didn’t involve a lot of lifting where [he] could sit.”
(DE 12, p. 54). The plaintiff testified that he would have to be off of his medication in order to
drive to any job and that he did not believe he could work for four days doing anything because
he “[could not] make it a full day at home.” (DE 12, p. 54).
2.

Vocational Expert Testimony

The VE testified that the plaintiff’s past work as an inserting machine operator is
classified as light, 7 unskilled work 8 (DE 12, p. 56). The VE testified that the plaintiff’s past work

7 20 C.F.R. § 416.967 (“To determine the physical exertion requirements of work in the national economy, [jobs are
classified] as sedentary, light, medium, heavy, and very heavy.”) (emphasis added).

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as a mailing machine operator is classified as medium, skilled work with an SVP of 5 9 (DE 12,
p. 56). The VE testified that the plaintiff’s past work as a “light, truck driver” is classified as
medium, semiskilled work with an SVP of 3 (DE 12, p. 56). 10 The VE testified that the
plaintiff’s past work as a warehouse worker/local delivery is usually classified as medium,
unskilled work (DE 12, p. 56). However, since the plaintiff worked with things in excess of one
hundred pounds and since he had to load and unload the truck by hand, the past work would
actually be classified as a truck driver helper, which is heavy, unskilled work (DE 12, p. 57).
The ALJ then presented the VE with hypothetical scenarios, considering a hypothetical
person of the same age and education as the plaintiff, but with varying RFC:
The first hypothetical would limit the person to light work with no climbing of ladders,
no more than occasional climbing of stairs, kneeling, and crawling and no more than
frequent balancing, stooping, or crouching.
(DE 12, p. 57). Pertaining to this hypothetical, the VE testified that the plaintiff could perform
only his past work as an inserting machine operator (DE 12, p. 57). Besides his past work, the
plaintiff could work as (a) a stock marker, with 4,000 employed in Tennessee and 168,000
employed nationally in this job; (b) a cleaner, with 5,000 employed in Tennessee and 260,000
employed nationally in this job; and (c) a bottling line attendant, with 2,000 employed in
Tennessee and 100,000 employed nationally in this job (DE 12, P. 58)
8 20 C.F.R. § 416.968 (“In order to evaluate [the plaintiff’s] skills…occupations are classified as unskilled, semiskilled, and skilled.”) (emphasis added).
9 SSR 00-4P, 2000 WL 1898704 (“The Dictionary of Occupational Titles (DOT) lists a specific vocational
preparation (SVP) time for each described occupation. Using the skill level definitions in 20 C.F.R. §§ 404.1568
and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and
skilled work corresponds to an SVP of 5-9 in the DOT.”) (emphasis added).
10 There is some ambiguity related to the plaintiff’s past work as a truck driver and whether it would be light or
medium. The physical exertion requirements indicated in the Dictionary of Occupational Titles (DOT) 906.683-022,
which describes work as “a truck driver, light,” are “medium…in excess of those for [l]ight [w]ork.” DICOT
906.683-022 (G.P.O.), 1991 WL 687717 (emphasis added). The VE testified that the physical exertion requirement
of the plaintiff’s past work as a “light, truck driver” would be medium (DE 12, p. 56). The DOT description of the
work as a “truck driver, light” and the VE testimony referring to a “light, truck driver” appear contradictory to the
physical exertion requirement of medium. However, the occupation title and the physical exertion requirement are
wholly separate considerations.

Page 9 of 30

The second hypothetical would limit the person to sedentary work.
(DE 12, p. 58). Pertaining to this hypothetical, the VE testified that the plaintiff could not
perform any of his past work, or any of the aforementioned jobs, but that he could work as (a) a
cuff folder, with 700 employed in Tennessee and 68,000 nationally in this job; (b) a film touch
up inspector, with 700 employed in Tennessee and 40,000 nationally in this job; (c) a wire
inserter, with 2,500 employed in Tennessee and 80,000 nationally in this job (DE 12, pp. 58-59).
The ALJ asked the VE whether there would be an impact on any of the jobs identified if a
hypothetical person had to alternate sitting and standing every two hours for at least five minutes
(DE 12, p. 59). The VE testified that there would be no impact on the sedentary jobs identified
(DE 12, p. 59). The VE testified that for the light jobs identified, there would be no impact on the
stock marker job, the cleaner job would be eliminated, and there would fewer bottling line
attendant jobs (DE 12, p. 59).
The ALJ asked the VE whether there would be an impact on the jobs identified if a
hypothetical person had to alternate sitting and standing every hour for at least five minutes,
instead of every two hours (DE 12, p. 60). The VE testified that this would not make any
difference (DE 12, p. 60). The ALJ asked the VE whether there would be an impact on the jobs
identified if a hypothetical person had to lie down for four hours of an eight hour day (DE 12, p.
60). The VE testified that there would be no jobs available for such a hypothetical person.
Cannon asked the VE whether the medical source statement that Dr. Halford had
completed would permit the plaintiff to perform any of his past relevant work (DE 12, p. 60).
The VE testified that it would not (DE 12, p. 60). Cannon asked the VE whether the medical
source statement would allow for any other work (DE 12, p. 60). The VE testified that it would
not because the statement would allow for only “less than full-time work.” (DE 12, p. 60).
Page 10 of 30

III.
A.

Analysis
Standard of Review

The issue before the Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), is limited to
whether there is substantial evidence in the record to support the Commissioner’s findings of
fact. “Substantial evidence” is “more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Carrelli v. Comm'r of Soc. Sec., 390 F. App'x 429, 434 (6th Cir. 2010) (quoting
Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.1994)). The Court “may not
try the case de novo, resolve conflicts in evidence, or decide questions of credibility.” Carrelli,
390 F. App'x at 434.

If there is “substantial evidence” in the record that supports the

Commissioner’s decision and the Commissioner applied the correct legal standard, then the
Court must affirm the Commissioner’s final decision, “even if the Court would decide the matter
differently, and even if substantial evidence also supports the [plaintiff’s] position.” Id. (citing
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986) (en banc)).
B.

Administrative Proceedings

Disability is defined for Title II DIB claims as an inability to “engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months….” 42 U.S.C. §§ 423(d)(1)(A) and 1382(c)(a)(3)(A); 20
C.F.R. § 404.1505. The ALJ uses a five-step sequential evaluation for DIB claims to determine
whether the plaintiff meets this definition of “disabled.” 20 C.F.R. § 404.1520(a)(4)(i)-(v).
i.

If the plaintiff is engaged in substantial gainful activity, the Court will find that the
plaintiff is not disabled.
Page 11 of 30

ii.

If the plaintiff does not have a severe medically determinable physical or mental
impairment meeting the duration requirement or a combination of such impairments,
the Court will find that the plaintiff is not disabled.

iii.

If the plaintiff does have an impairment(s) that meets or equals one of the listings of
impairments in 20 C.F.R. pt. 404, Subpt. P, App. 1 (Appendix 1) and meets the
duration requirement, the Court will find that the plaintiff is disabled.

iv.

The court considers the plaintiff’s Residual Functional Capacity (RFC) and past
relevant work. If the plaintiff can still perform their past relevant work, the Court will
find that they are not disabled.

v.

The Court considers the plaintiff’s RFC, age, education, and experience to determine
if the plaintiff can perform work other than past relevant work. If the plaintiff can
make an adjustment, the Court will find that they are not disabled.

The plaintiff has the burden of proof for steps one to four. Carrelli, 390 F. App'x at 435.
The burden shifts to the Commissioner at step five, where the Commissioner must “identify a
significant number of jobs in the economy that accommodate the [plaintiff’s] RFC and
vocational profile.” Id. To meet the burden, the ALJ may use the medical-vocational guidelines
in 20 C.F.R. pt. 404, Subpt. P, App. 2 (Appendix 2). 20 C.F.R. § 404.1569.
Appendix 2 is referred to as “the grid,” and provides guidance to the ALJ in determining
whether the plaintiff is disabled or whether significant numbers of other jobs exist for the
plaintiff. Wright v. Massanari, 321 F.3d 611, 615 (6th Cir. 2003). “Where the findings of fact
made with respect to a particular individual's vocational factors and RFC coincide with all of the
criteria of a particular rule [in the grid], the rule directs a conclusion as to whether the individual
is or is not disabled.” Anderson v. Comm'r of Soc. Sec., 406 F. App'x 32, 35 (6th Cir. 2010)
(quoting Appendix 2 at § 200.00(a)). Otherwise, instead of using the grid alone, the ALJ must
consider all relevant facts. 20 C.F.R. § 404.1569.

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C.

Administrative Reliance on Vocational Expert Testimony

If a plaintiff’s limitations “do not satisfy the exact requirements of the medical-vocational
guidelines, the ALJ [is] entitled to rely on the testimony of a VE in reaching his decision” as to
whether the plaintiff is disabled or whether the plaintiff is not disabled and a significant number
of jobs exist that the plaintiff can perform. Range v. Soc. Sec. Admin., 95 F. App'x 755, 757 (6th
Cir. 2004). If an “issue in determining whether [a plaintiff] is disabled is whether [their] work
skills can be used in other work and the specific occupations in which they can be used…, [the
ALJ] may use the services of a VE….” 20 C.F.R. § 404.1566(e).
What number of jobs in the national economy constitutes a “significant number” of jobs
is a determination that must be made on a case-by-case basis. Born v. Sec'y of Health & Human
Servs., 923 F.2d 1168, 1174 (6th Cir. 1990) (citing Hall v. Bowen, 837 F.2d 272, 275 (6th Cir.
1988)). The ALJ may consider “the level of claimant's disability; the reliability of the vocational
expert's testimony; the reliability of the claimant's testimony; the distance claimant is capable of
travelling to engage in the assigned work; the isolated nature of the jobs; the types and
availability of such work, and so on.” Id.
D.

Notice of Decision

On December 09, 2010, the ALJ denied the plaintiff’s claims and made the findings of
fact and conclusions of law enumerated below.
1. Claimant meets the insured status requirements of the Act through December 13,
2012.
2. Claimant has not engaged in substantial gainful activity since March 17, 2008, the
alleged onset date.
3. Claimant has the following severe impairments:
obesity.
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degenerative disc disease and

4. Claimant does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in Appendix 1.
5. Claimant has the RFC to perform sedentary work except he must be allowed to
alternate sitting and standing every hour; cannot climb ladders; cannot more than
occasionally climb stairs, kneel, or crawl; and cannot more than frequently balance,
stoop, or crawl.
6. Claimant is unable to perform any past relevant work.
7. Claimant was 44 years old on the alleged disability onset date. The claimant
subsequently changed age category to a younger individual age 45-49.
8. Claimant has at least a high school equivalent education and is able to communicate
in English.
9. Transferability of job skills is not material to the determination of disability.
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.
(DE 12, pp. 24-27). On December 09, 2010, the ALJ made the specific decision below.
1. Based on the application for DIB filed on April 07, 2009, the claimant is not disabled
under sections 216(i) and 223(d) of the Act [42 U.S.C. §§ 416(i) and 423(d)].
(DE 12, p. 28).
IV.
A.

Claims of Error

Weight Given to the Treating Physician’s Opinion

The plaintiff argues that the ALJ failed to give adequate weight to the opinions and
medical source statement of the plaintiff’s treating physician, Dr. Halford (DE 15, p. 10). The
plaintiff argues that the ALJ decided that Dr. Halford’s opinion was not fully credible “solely
because [the plaintiff] was released to return to work [by Dr. Parsons] and ‘there [was] no
evidence he sought further orthopedic treatment.’” (DE 15, p. 10, quoting the record). The
plaintiff argues that this rationale is an inaccurate recitation of Dr. Parson’s orthopedic records,
Page 14 of 30

which, according to the plaintiff, indicate that the plaintiff did return to Dr. Parsons after Dr.
Parsons released him for work, and did so complaining of the same symptoms that he had prior
to surgery (DE 15, pp. 10-11). The plaintiff also argues that the ALJ’s rationale “completely
ignores the report of Dr. Buechel…, who also noted ‘[the plaintiff] may well be a candidate for
pain management.’” (DE 15, pp. 11, quoting the record).
A “treating source” is a plaintiff’s “physician, psychologist, or other acceptable medical
source who provides…or has provided…medical treatment or evaluation and who has, or has
had, an ongoing treatment relationship 11 with [the plaintiff].” 20 C.F.R. § 404.1502. When an
ALJ reviews “medical evidence supplied in support of a claim, there are certain governing
standards to which an ALJ must adhere. Key among these is that greater deference is generally
given to the opinions of treating physicians than to those of non-treating physicians, commonly
known as the treating physician rule.” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 242 (6th
Cir. 2007) (emphasis added) (citing SSR 96–2P, 1996 WL 374188; Wilson v. Comm'r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir.2004)).
The record shows that the ALJ did not fail to give adequate weight to Dr. Halford’s
opinion, did not use inaccurate information, and did not ignore a report by Dr. Buechel. As a
threshold matter, the plaintiff’s argument that the ALJ failed to give adequate weight to Dr.
Halford’s opinion is more properly considered with the argument about whether the ALJ failed
to give good reasons for discounting the opinion, addressed below, 12 than with the argument
herein about whether the ALJ inaccurately read or wholly ignored the medical records. Whether
11 20 C.F.R. §§ 404.1502 and 416.902 (An “ongoing treatment relationship" is a relationship for which “the medical
evidence establishes that [the plaintiff] see[s], or ha[s] seen, the source with a frequency consistent with accepted
medical practice for the type of treatment and/or evaluation required for [the] medical condition(s). [An ALJ] may
consider an acceptable medical source who has treated or evaluated [a plaintiff] only a few times or only after long
intervals…to be [the] treating source if the nature and frequency of the treatment or evaluation is typical for [the]
condition(s).”).
12 See infra Part IV.B.

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the weight that the ALJ gave to Dr. Halford’s opinion was adequate turns on whether good
reasons were proffered by the ALJ in his weight determination.
The record shows that the ALJ did not rely on an inaccurate recitation of Dr. Parson’s
records when deciding what weight to give to Dr. Halford’s opinion. Instead, the ALJ considered
the fact that Dr. Parsons released the plaintiff to work postoperatively in August 2008, but that
the plaintiff subsequently saw Dr. Buechel and Dr. Parsons with problems (DE 12, pp. 25-26).
The plaintiff saw Dr. Buechel in March 2009, at the request of Dr. Parsons, for “numbness,
weakness, and pain.” (DE 12, p. 26; citing exhibit 4F). In September 2009, Dr. Parsons informed
the plaintiff that he did not think there was going to be a solution to his problem but scheduled a
pain management consultation (DE 12, p. 26; citing exhibit 8F). The record shows that the ALJ
relied on Dr. Parsons’ release of the plaintiff to work and the plaintiff’s failure to seek further
treatment when deciding the credibility of the plaintiff, not when deciding what weight to give to
Dr. Halford’s opinion: “I give significant weight to [the plaintiff’s] testimony….he was released
to work as a truck driver. There is no evidence of any subsequent injury and [the plaintiff] never
sought further orthopedic treatment.” (DE 12, p. 26). Therefore, the record provides substantial
evidence that the ALJ did not rely on an inaccurate recitation of Dr. Parsons’ records.
In addition to the record showing that the ALJ did not rely on an inaccurate recitation of
Dr. Parson’s orthopedic records, the record also shows that the ALJ did not “solely” rely on Dr.
Parsons' release of the plaintiff back to work when deciding what weight to give to Dr. Halford’s
opinion. Instead, the record provides substantial evidence that the ALJ gave other reasons for
discounting the opinion of Dr. Halford, as addressed below. 13

13 Id.

Page 16 of 30

The record provides substantial evidence that the ALJ did not ignore the report of Dr.
Buechel. Instead, as mentioned, the ALJ considered the fact that the plaintiff saw Dr. Buechel in
March 2009 (DE 12, p. 26, citing exhibit 4F page 301). The record shows that the ALJ also
considered the fact that the plaintiff ultimately “asked for a referral to a pain clinic” (DE 12, p.
26), as Dr. Buechel indicated the plaintiff might want to consider (DE 10, p. 304).
The record provides substantial evidence that the ALJ did not discount Dr. Halford’s
opinion based on an inaccurate recitation of Dr. Parson’s postoperative medical reports, on an
exclusive reliance on Dr. Parson’s records, or on ignorance of Dr. Buechel’s treatment record.
B.

Good Reasons for Discounting the Opinion of a Treating Physician

The plaintiff argues that the ALJ failed to give good reasons for discounting the opinion
of Dr. Halford because the ALJ’s conclusion, that “‘Dr. Halford fail[ed] to reference any
abnormal medical findings that support his opinion,’” was inaccurate (DE 15, p. 11, quoting the
record). The plaintiff also argues that the ALJ failed to consider the factors that an ALJ must
consider when they do not give controlling weight to opinion of a treating physician (DE 15, p.
12). The plaintiff finally argues that the alleged failure by the ALJ to provide good reasons for
discounting the opinion of Dr. Halford was not harmless error (DE 15, pp. 13-14).
According to the treating physician rule, and pursuant to 20 C.F.R. § 404.1527(c)(2), “[i]f
[an ALJ] find[s] that a treating source's opinion on the issue(s) of the nature and severity of [the
plaintiff’s] impairment(s) is well-supported…and is not inconsistent with the other substantial
evidence…, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2); Wilson, 378
F.3d at 544.
“There is an additional procedural requirement associated with the treating physician rule
[whereby]…the ALJ must provide ‘good reasons’ for discounting treating physicians'
Page 17 of 30

opinions….” Rogers, 486 F.3d at 242 (emphasis added). In other words, if an ALJ does not give
a treating source’s opinion controlling weight, then the ALJ must provide good reasons for the
weight they do give to the treating source's opinion. 20 C.F.R. § 404.1527(c)(2). “This
procedural ‘good reasons’ rule serves both to ensure adequacy of review and to give the
claimant a better understanding of the disposition of his case.” Dunlap v. Comm'r of Soc. Sec.,
509 F. App'x 472, 474 (6th Cir. 2012) (emphasis added) (citing Rogers, 486 F.3d at 242). The
procedural good reasons rule is important “particularly in situations where a [plaintiff] knows
that [their] physician has deemed [them] disabled and therefore ‘might be especially bewildered
when told by an administrative bureaucracy that [they are] not, unless some reason for the
agency's decision is supplied.’” Wilson, 378 F.3d at 544-45 (quoting Snell v. Apfel, 177 F.3d
128, 134 (2d Cir.1999)).
If an ALJ does not give a treating source’s opinion controlling weight, then the ALJ must
consider all of the following factors in deciding what discounted weight to give to the treating
sources’s opinion: (c)(1) examining relationship; (c)(2)(i) length of the treatment relationship
and frequency of examination; (c)(2)(ii) nature and extent of the relationship; (c)(3) supportable
medical evidence; (c)(4) evidence that is consistent with the record; (c)(5) specialization; and
(c)(6) other factors. 20 C.F.R. § 404.1527(c).
The Sixth Circuit has ruled that the treating physician rule is a mandatory procedural
requirement. Wilson, 378 F.3d at 546. “A court cannot excuse the denial of a mandatory
procedural protection simply because…there is sufficient evidence in the record for the ALJ to
discount the treating source's opinion and, thus, a different outcome on remand is unlikely.” Id.
(emphasis added). Therefore, despite the standard of review whereby the reviewing Court is
limited to determining whether there is substantial evidence in the record to support the
Page 18 of 30

Commissioner’s findings of fact, no amount of substantial evidence in the record can excuse an
ALJ’s failure to follow the treating physician rule. “To hold otherwise, and to recognize
substantial evidence as a defense to non-compliance with § 1527([c])(2), 14 would afford the
[ALJ] the ability the violate the regulation with impunity and render the protections promised
therein illusory.” Id. (emphasis added). However, the Sixth Circuit has also ruled that there are
potential scenarios in which an ALJ’s failure to follow the treating physician rule could
constitute a “de minimis violation,” and therefore “harmless error.” Wilson, 378 F.3d at 547. 15
The record shows that the ALJ discounted the weight he gave to Dr. Halford’s opinion
from “controlling weight” to “some weight,” in compliance with the treating physician rule
because the ALJ found a lack of support for the opinion of Dr. Halford and a lack of consistency
between the record and the opinion of Dr. Halford (DE 12, p. 25). The ALJ noted that Dr.
Halford’s medical source statement failed to include “any abnormal medical findings [to] support
his opinion,” and noted that “Dr. Halford’s opinion [was] contrary to the evidence that [Dr.
Parsons] released [the plaintiff] to work as a truck driver…” (DE 10, p. 27), rendering the
opinion not “well-supported…” and also “inconsistent with the other substantial evidence…”
and precluding conferment of controlling weight under 20 CFR § 404.1527(c)(2). The record
shows that within Dr. Halford’s medical source statement, there were nine places in which the
provider was instructed to identify the medical or clinical findings that “support [the]
assessment” (DE 10, pp. 340-45). Of these places, the record shows that Dr. Halford left six

14 20 C.F.R. § 404.1527(d)(2) (current version at 20 C.F.R. § 404.1527(c)(2) (2012)).
15 Wilson, 378 F.3d at 547 (These potential scenarios include when: (1) “a treating source’s opinion is so patently
deficient that the [ALJ] could not possibly credit it;” (2) “the [ALJ] adopts the opinion of the treating source or
makes findings consistent with the opinion, [in which case] it may be irrelevant that the ALJ did not give weight to
the treating physician's opinion, and the failure to give reasons for not giving such weight is correspondingly
irrelevant;” or (3) “the [ALJ] has met the goal of § 1527([c])(2) …even though [they have] not complied with the
terms of the regulation.”). Id.

Page 19 of 30

places blank (DE 10, pp. 342-45), wrote “reaching and holding objects away from the body
greatly aggravates back pain” in one place (DE 10, p. 342), and wrote or referred to “advanced
lumbar degenerative disc disease, spinal canal narrowing, despite two operations” in two places
(DE 10, pp. 340-41). Therefore, the record provides substantial evidence that the ALJ discounted
the weight he gave to the opinion of Dr. Halford in compliance with the treating physician rule.
The record shows that Dr. Halford’s opinion did not meet the requirements for
controlling weight, and that the ALJ therefore proceeded to give good reasons for giving “some
weight” to Dr. Halford’s opinion. The record shows that these reasons reflect the factors which
the ALJ must consider when not giving controlling weight to the opinion of a treating source
under 20 C.F.R. § 404.1527(c). The ALJ considered the (c)(1) examining relationship, when
acknowledging that Dr. Halford was the plaintiff’s “primary care physician.” (DE 10, p. 25). The
ALJ considered the (c)(2)(i) length of the treatment relationship and frequency of examination as
well as the (c)(2)(ii) nature and extent of the relationship, when noting that Dr. Halford saw the
plaintiff in May 2008 and documented that the plaintiff had “obesity with a sedentary lifestyle,
along with degenerative disc disease.” (DE 10, p. 25). The ALJ considered the lack of (c)(3)
supportable medical evidence and (c)(4) evidence that is consistent with the record, as described
in the preceding paragraph. The ALJ considered the (c)(5) specialization of the plaintiff’s
treating orthopedic doctors and acknowledged that Dr. Halford was a primary care physician, not
a specialist (DE 10, p. 25). While the ALJ could have been more explicit in delineating these
factors, the record provides substantial evidence that the ALJ did consider these factors and did
state the reasoning behind his decision to discount the weight given to Dr. Halford’s opinion.
The record shows that the ALJ complied with the treating physician rule when assessing
the opinion of Dr. Halford and providing good reasons for discounting the opinion. Therefore,
Page 20 of 30

the Court does not need to address whether a failure to comply with the treating physician rule
constituted a de minimis violation of the regulation or harmless error on the part of the ALJ.
The record provides substantial evidence that the ALJ did not err in finding a lack of
support or consistency between the record and the opinion of Dr. Halford, did not fail to give
good reasons for discounting the opinion of Dr. Halford from “controlling weight” to “some
weight,” did not overlook the testimony of the plaintiff, and did not make his decision in such a
way so as to thwart even the harmless error exception.
C.

New and Material Evidence

The plaintiff argues that additional post hearing evidence dated January 24, 2011 should
be considered new and material evidence that “relates to the treatment of the [plaintiff] prior to
the hearing and explains what was apparently a misapprehension of the evidence by the ALJ.”
(DE 15, p. 14). The January 24, 2011 evidence consists of a letter from Dr. Parsons, in response
to an inquiry from the plaintiff’s representative (DE 12, p. 433). Dr. Parsons wrote that “[h]aving
already had two back operations and one unsuccessful return to work, I do not believe at this
time that [the plaintiff] is going to be able to hold down any type of employment that requires
any physical effort at all.” (DE 12, p. 433).
“A district court's authority to remand a case…is found in 42 U.S.C. § 405(g)….” Hollon
ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 482-83 (6th Cir. 2006). “Sentence four” and
“sentence six” of this statute both authorize remands. Hollon ex rel. Hollon, 447 F.3d at 483.
Sentence four provides that “[t]he 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). Therefore, “a district court may order a ‘sentence four’ remand…, if it
Page 21 of 30

determines that a rehearing before the Commissioner is warranted….” Hollon ex rel. Hollon, 447
F.3d at 483. Sentence six provides:
The court may, on motion of the Commissioner of Social Security made for good cause
shown before the Commissioner files the Commissioner's answer, remand the case to the
Commissioner of Social Security for further action by the Commissioner of Social
Security, and it may at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding; and the Commissioner of Social Security
shall, after the case is remanded, and after hearing such additional evidence if so ordered,
modify or affirm the Commissioner's findings of fact or the Commissioner's decision, or
both, and shall file with the court any such additional and modified findings of fact and
decision, and, in any case in which the Commissioner has not made a decision fully
favorable to the individual, a transcript of the additional record and testimony upon which
the Commissioner's action in modifying or affirming was based.
42 U.S.C. § 405(g) (emphasis added). Before the district court may order a remand under
“sentence six,” the party seeking a remand must meet their burden of showing “(i) that the
evidence at issue is both ‘new’ and ‘material,’ and (ii) that there is ‘good cause for the failure to
incorporate such evidence into the record in a prior proceeding.’” 42 U.S.C. § 405(g); Hollon ex
rel. Hollon, 447 F.3d at 483.
Evidence is “new” “if it was not in existence or available to the claimant at the time of
the administrative proceeding.” Hollon ex rel. Hollon, 447 F.3d at 484 (quoting Foster v. Halter,
279 F.3d 348, 357 (6th Cir.2001) (internal quotation marks and citation omitted)). Evidence is
“material if “‘there is a reasonable probability that the [Commissioner] would have reached a
different disposition of the disability claim if presented with the new evidence.’” Id. A plaintiff
can show “good cause for the failure to incorporate such evidence “by demonstrating a
reasonable justification for the failure to acquire and present the evidence for inclusion in the
hearing before the ALJ.” Id.

Page 22 of 30

The record shows that the plaintiff has not met the burden of presenting all of the
prerequisites for a “sentence six” remand. The January 2011 letter is new because it was written
after the December 09, 2010 hearing and was therefore not in existence at the time of the hearing
(DE 12, p. 433). However, the plaintiff does not show that the letter was “material.” The plaintiff
does not show that the ALJ would have reached a different decision if he had the letter from Dr.
Parsons. The plaintiff does not show that the ALJ had a “misapprehension of the evidence” for
which the letter could now cure. Instead, the record shows that the ALJ considered the plaintiff’s
treatment records and the timeline of care after the plaintiff’s second surgery in June 2008, as
discussed above, 16 including Dr. Parsons’ opinion that nothing further could be done to help the
plaintiff’s symptoms and Dr. Halford’s opinion that the plaintiff could not work an eight hour
day (DE 12, pp. 337, 341). The plaintiff does not show and the record does not suggest that Dr.
Parsons’ letter would have caused the ALJ to decide the RFC differently than he did with the
records at the hearing. With those records, the ALJ acknowledged that the plaintiff “attempted to
work as a truck driver after his back surgery,” noted that the plaintiff “never thought about
attempting work that [was] less physically demanding,” and noted that “[the plaintiff] did not
think he could perform any job on a full time basis.” (DE 12, p. 26). Based on those records, the
ALJ determined an RFC of sedentary work with restrictions for the plaintiff (DE 12, p. 25). The
plaintiff does not show how Dr. Parsons’ letter would have displaced the decision-making of the
ALJ based on the records that he had at the hearing. Therefore, the record provides substantial
evidence that the plaintiff has failed to show that the letter would constitute “material evidence.”
Further, the plaintiff does not show that there was “good cause for the failure to
incorporate” the letter in the hearing. The plaintiff does not show that the letter was unavailable

16 See supra Part IV.A.

Page 23 of 30

to or unattainable by the plaintiff leading up to the hearing before the ALJ. The plaintiff has not
shown any difficulty in the receipt of records from the office of Dr. Parsons or any inability to
secure the letter prior to the proceeding. Instead, the plaintiff requested that an AC review the
decision of the ALJ on December 17, 2010 (DE 12, p. 15) and received the letter from Dr.
Parsons quickly enough to include it in that request (DE 12, p. 4). Therefore, the record provides
substantial evidence that the plaintiff has failed to show “good cause” for not obtaining the letter
prior to and including the letter in the hearing.
Therefore, the record provides substantial evidence that the January 24, 2011 letter does
not meet the requirements of a “sentence six” remand under 42 U.S.C. § 405(g).
C. Credibility Determination
The plaintiff argues that the ALJ did not support his determination of the plaintiff’s
credibility with substantial evidence (DE 15, p. 15). The plaintiff also argues that the plaintiff’s
testimony deserved greater deference than it received because it was consistent with
uncontradicted medical evidence (DE 15, p. 15). Finally, the plaintiff argues that the ALJ
“concluded that [the plaintiff’s] allegations of pain and limitations were not fully credible “solely
because [the plaintiff] was released to return to work [by Dr. Parsons] and ‘there [was] no
evidence [the plaintiff] sought further orthopedic treatment’” and because the plaintiff’s
allegations were “‘inconsistent with his limited medical treatment.’” (DE 15, p. 15, quoting the
record). Regarding the latter point, the plaintiff also alleges that “to call two back surgeries with
residual pain and numbness requiring ongoing pain management care with narcotics ‘limited
medical treatment’ is beyond a loose use of the term.” (DE 15, p. 16).
When the ALJ considers the plaintiff’s credibility and the plaintiff’s symptoms in the
context of making the disability determination, they use a two-part process for symptom
Page 24 of 30

evaluation. SSR 96-7P, 1996 WL 374186. First, “the [ALJ] must consider whether there is an
underlying medically determinable physical or mental impairment…that could reasonably be
expected to produce the individual's…symptoms.” Next, “the [ALJ] must evaluate the intensity,
persistence, and limiting effects of the…symptoms to determine the extent to which the
symptoms limit the individual's ability to do basic work activities.” SSR 96-7P, 1996 WL
374186. A plaintiff’s symptoms will limit their ability to do basic work activities to the extent
that the symptoms can reasonably be accepted as consistent with objective medical evidence.
However, objective evidence alone does not always reflect the severity of symptoms. When
information other than objective evidence is needed to determine the credibility of a plaintiff’s
statements about their symptoms, the ALJ must also consider seven specific factors. 20 C.F.R. §
404.1529(c). The factors are: (1) daily activities; (2) location, duration, frequency, and intensity;
(3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of
medication; (5) treatment; (6) measures to relieve pain or other symptoms; and (7) factors
concerning functional limitations and restrictions. 20 C.F.R. § 404.1529(c).
“[Plaintiff] [c]redibility determinations with respect to subjective complaints of pain rest
with the ALJ.” Torres v. Comm'r of Soc. Sec., 490 F. App'x 748, 755 (6th Cir. 2012) (quoting
Allen v. Comm'r of Soc. Sec., 561 F.3d 646, 652 (6th Cir.2009)) (internal quotation marks and
alterations omitted). The ALJ’s plaintiff credibility determinations “are to be accorded great
weight and deference, particularly since an ALJ is charged with the duty of observing a witness's
demeanor and credibility.” Torres, 490 F. App'x at 755 (6th Cir. 2012) (quoting Walters v.
Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)). However, “[i]n light
of…uncontradicted and overwhelming medical and lay evidence” of a plaintiff’s symptoms, a
court may “decline to give substantial deference to [an] ALJ's unexplained credibility finding.”
Page 25 of 30

King v. Heckler, 742 F.2d 968, 975 (6th Cir. 1984) (emphasis added). In other words, when
“uncontroverted medical evidence in the record is entirely consistent with a witness's testimony,
an ALJ may not disregard that evidence….” Anthony v. Astrue, 266 F. App'x 451, 460 (6th Cir.
2008) (citing Harris ex rel Harris v. Heckler, 756 F.2d 431, 436 (6th Cir.1985)). However, when
there is conflicting medical evidence, and ALJ “must necessarily make credibility
determinations.” Anthony, 266 F. App'x at 460 (citing King, 742 F.2d at 974). When an “ALJ
[has] considered the evidence in the record and provided specific reasons for [their] credibility
findings, [their] decision is entitled to great deference and is supported by substantial evidence.”
Anthony, 266 F. App'x at 460 (emphasis added).
The ALJ is not permitted to draw inferences about a plaintiff’s symptoms based on
“failure to seek or pursue regular medical treatment” without considering explanations such as
being “unable to afford treatment” or the plaintiff “hav[ing] been advised by a medical source
that there is no further, effective treatment that can be prescribed and undertaken that would
benefit the individual.” SSR 96-7P, 1996 WL 374186.
The record shows that the ALJ did support his credibility determination with substantial
evidence. At step 4 of the disability determination, the ALJ first found that “the [plaintiff’s]
medically determinable impairments could reasonably be expected to cause the alleged
symptoms….” (DE 12, p. 26). The ALJ next evaluated the plaintiff’s statements about the
intensity, persistence, and limiting effects of her symptoms, and found a lack of credibility “to
the extent they [were] inconsistent with the…RFC….” (DE 12, p. 26). The record shows that the
ALJ considered the required specific factors in his credibility determination, in compliance with
20 C.F.R. § 404.1529(c): (1) “[plaintiff] underwent back surgery on June 23, 2003 and again
on June 9, 2008 [treatment];” (2) “[plaintiff] was seen by his primary care physician…on May
Page 26 of 30

22, 2008…[frequency];” (3) “[plaintiff] returned to [Dr. Parsons] on May 28, 2008 with minor
symptoms…[intensity];” (4) “[plaintiff] reported helping a friend work in a body shop with no
adverse effect [daily activities];” (5) “[plaintiff] subsequently was treated by several pain
specialists…but did not receive any further orthopedic treatment except…when he asked for a
referral to a pain clinic [measures to relieve pain or other symptoms];” (6) “[plaintiff] testified
that his left leg [location] is constantly [duration] numb and that his pain medication causes
him to be forgetful and to lose his balance [side effects of medication];” (7) “[plaintiff] does no
lifting and performs no household chores. He noted spending time with friends and watching
television. [H]e naps most days for one hour. He uses a riding mower [daily activities];” (8)
“[plaintiff] attempted to work as a truck driver after his back surgery, but claims his back went
out while he was driving [precipitating and aggravating factors];” and (9) “[plaintiff] never
thought about attempting work that is less physically demanding. He did not think he could
perform any job on a full time basis [factors concerning functional limitations and
restrictions].” (DE 12, pp. 25-26). Therefore, the record provides substantial evidence that the
ALJ supported his credibility determination in compliance with 20 C.F.R. § 404.1529(c).
The record shows that the ALJ’s decision to discount the plaintiff’s testimony, giving it
“significant weight” but not full credit, deserves substantial deference because the plaintiff’s
testimony was not consistent with uncontradicted medical evidence, because the ALJ considered
the evidence, and because the ALJ gave specific reasons for his credibility determination. First,
the record shows that the medical evidence was not uncontradicted. The state agency consultants
found that the plaintiff “could perform light work” (DE 12, p. 26), Dr. Le’s testing showed some
symptomatic results but mostly normal results (DE 12, p. 26), Dr. Halford’s medical source
statement provided that, inter-alia, although the plaintiff “could sit for two hours out of an eight
Page 27 of 30

hour day [and]… stand or walk for one hour out of an eight hour day,” the plaintiff ultimately
“could not be at work for eight hours.” (DE 12, pp. 341-46), and Dr. Parsons’ indicated that he
did not think there would be a solution to the plaintiff’s problem….” (DE 12, p. 337). Also, the
record shows that the ALJ considered the record and found that the plaintiff’s testimony was not
consistent with the opinions of the state agency consultants because those opinions actually
“fail[ed] to give adequate consideration to [the plaintiff’s] symptoms and particularly to [the
plaintiff’s] pain.” (DE 12, p. 26). The ALJ gave significant weight to the plaintiff’s testimony in
determining that the plaintiff was “limited to sedentary work that permits him to alternate sitting
and standing every hour” but did not extend that weight to the plaintiff’s testimony that he could
only sit for a few minutes, could not perform any full time job, and had severe medication side
effects. (DE 12, p. 26). The ALJ explained that his reasons for giving significant but not full
weight to the plaintiff’s testimony included the fact that the plaintiff had been released to work,
despite unsuccessful attempts, that the plaintiff “had a good recovery from his last surgery,” and
the fact that “[t]here [was] no evidence of any subsequent injury….” (DE 12, p. 26).
The record shows that, to the extent the plaintiff argues that the ALJ inappropriately
granted only significant weight to the plaintiff’s testimony solely because of the fact that the
plaintiff was released to return to work and did not seek further orthopedic treatment, this
argument lacks merit. The record shows that the ALJ acknowledged that the plaintiff “made
several unsuccessful attempts at working” after being released and that the ALJ considered these
attempts to “have been unsuccessful work attempts.” (DE 12, p. 24). However, the ALJ then
went on to base his credibility determination, not on the facts about the unsuccessful return to
work alone, but on the required factors under 20 C.F.R. § 416.929(c) and on the contradictions
between the testimony and the record, as explained in the two preceding paragraphs.
Page 28 of 30

The record shows that the ALJ found that the plaintiff’s testimony was “‘inconsistent
with his limited medical treatment.’” (DE 12, p. 26). The ALJ could have been more explicit in
explaining his use of the term “limited medical treatment,” especially since the plaintiff
continued to see physicians and specialists after his second surgery 17 and since the ALJ
considered this treatment (DE 12, p. 26, citing exhibits 4F, 8F, 10F, 11F). However, the record
shows that when the ALJ considered the plaintiff’s symptoms and the plaintiff’s “limited
treatment” or “failure to seek or pursue regular medical treatment,” the ALJ did so in compliance
with SSR 96-7P guidance. The record shows that the ALJ was aware of the plaintiff’s loss of
insurance coverage (DE 12, p. 45) and was aware that Dr. Parsons had informed the plaintiff that
there was no solution for his problem (DE 12, p. 337) when the ALJ determined the plaintiff’s
credibility. In other words, the ALJ considered the plaintiff’s “limited treatment” but also
considered the “explanations such as being ‘unable to afford treatment’ or the plaintiff ‘hav[ing]
been advised…that there [was] no further, effective treatment that can be prescribed and
undertaken that would benefit the individual.” SSR 96-7P, 1996 WL 374186.
Therefore, the record provides substantial evidence that the ALJ supported his credibility
determination with substantial evidence, that the ALJ assessed the plaintiff’s credibility by
considering the evidence in the record and provided specific reasons for his determination.
17 The plaintiff presented to Dr. Halford to discuss weight loss on May 22 (DE 12, p. 197); he presented to Dr.
Parsons with minor complaints of nerve problems in his legs on May 28, which resolved by June 26 and remained
resolved through August 07 (DE 12, pp. 256-257). On February 09, 2009, an indiscernible provider indicated the
plaintiff should be “off work for ten days.” (DE 12, p. 250) On March 26, 2009, the plaintiff presented to Dr.
Buechel with “numbness, weakness, and pain.” (DE 12, p. 304). On September 03, 2009, the plaintiff presented to
Dr. Parsons with numbness in his left leg and foot (DE 12, p. 337). Dr. Parsons indicated that he did think there
would be a solution to the plaintiff’s problem (DE 12, p. 337). On September 09, 2009, the plaintiff presented to Dr.
Le, who ordered physical therapy, testing, and narcotics (DE 12, pp. 324-25). From September 16 to November 20,
2009, the plaintiff completed weekly physical therapy (DE 12, pp. 361-71). From March 25 to July 25, 2010, the
plaintiff presented to Spectrum Pain Clinic under Dr. Faccia for pain management (DE 12, pp. 45, 374-432). On
May 6 and June 30, 2010, the plaintiff received lumbar nerve blocks (DE 12, pp. 390, 405).

Page 29 of 30

V.

Conclusion

The record provides substantial evidence to support the Commissioner’s findings of fact
and the Commissioner applied the correct legal standard.
VI.

Recommendation

For the reasons explained above, the Magistrate Judge RECOMMENDS that the
plaintiff’s motion (DE 15) be DENIED, and the Commissioner’s decision be AFFIRMED.
The parties have fourteen (14) days, after being served with a copy of this Report and
Recommendation (R&R) to serve and file written objections to the findings and recommendation
proposed herein. A party shall respond to the objecting party’s objections to this R&R within
fourteen (14) days after being served with a copy thereof. Failure to file specific objections
within fourteen (14) days of receipt of this R&R may constitute a waiver of further appeal.
Thomas v. Arn, 474 U.S. 140 reh’g denied, 474 U.S 1111 (1986); Cowherd v. Million, 380 F.3d
909, 912 (6th Cir. 2004).
ENTERED this 8th day of August, 2013.

s/Joe B. Brown_____________________
Joe B. Brown
U.S. Magistrate Judge

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