Bumpus v. Social Security Administration
MEMORANDUM OPINION OF THE COURT. Signed by Magistrate Judge Barbara D. Holmes on 3/27/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NANCY A. BERRYHILL 1
Acting Commissioner of Social Security
Magistrate Judge Holmes
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 (“SSA”) partially
denying Plaintiff’s claim for a period of disability, Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”), as provided under Title II and XVI of the Social Security
Act (“the Act”). 2 The case is currently pending on Plaintiff’s motion for judgment on the
administrative record (Docket Entry No. 12), to which Defendant has responded (Docket Entry
No. 13). Plaintiff has also filed a subsequent reply to Defendant’s response (Docket Entry
No. 14-1). 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. 22).
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for former Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
The denial was “partial” in light of the ALJ’s indication that another office within the Social Security
Administration would determine whether Plaintiff met the non-disability requirements for SSI payments,
based on the ALJ’s determination that Plaintiff was disabled as of May 1, 2008. See Transcript of the
Administrative Record (Docket Entry No. 10), at 8, 21-22.
Upon review of the administrative record as a whole and consideration of the parties’
filings, Plaintiff’s motion is GRANTED. For the reasons stated herein, the Court REVERSES
the decision of the Commissioner and REMANDS this case for further administrative
Plaintiff filed an application for a period of disability, DIB, and SSI on September 12,
2008. See Transcript of the Administrative Record (Docket Entry No. 10), at 72-77. 1 He alleged
a disability onset date of November 1, 2002, which was later amended to June 4, 2004. AR 12,
72-77, 138. Plaintiff asserted that he was unable to work because of neck and back pain, past
surgeries, medication side effects, and depression. AR 73, 75, 138.
Plaintiff’s applications were denied initially and upon reconsideration. AR 72-77.
Pursuant to his request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with his counsel and testified at a hearing before ALJ Brian Dougherty on July 21,
2010. AR 27. On August 16, 2010, the ALJ entered a partially favorable decision. AR 8-10. The
ALJ determined that Plaintiff was not disabled prior to May 1, 2008, but was disabled from
May 1, 2008 through the date of the ALJ decision. AR 12-22. On April 20, 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).
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.
II. THE ALJ FINDINGS
The ALJ issued a partially favorable decision on August 16, 2010. AR 8-10. 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, 2006.
2. The claimant has not engaged in substantial gainful activity since the amended
alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. Since the amended alleged onset date of disability, June 4, 2004, the claimant
has had the following severe impairments: cervical spondylosis and lumbar
degenerative disc disease, status post two lumbar spine surgeries. Beginning on
the established onset date of disability, May 1, 2008, the claimant has had the
following severe impairments: cervical spondylosis and lumbar degenerative disc
disease, status post two lumbar spine surgeries, along with bilateral shoulder
impingement syndrome (20 CFR 404.1520(c) and 416.920(c)).
4. Since the amended alleged onset date of disability, June 4, 2004, the claimant
has not had an impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
5. After careful consideration of the entire record, the undersigned finds that prior
to May 1, 2008, the date the claimant became disabled, the claimant had the
residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except that he could sit for six hours in an eight-hour
workday, and he could stand or walk for six hours in an eight-hour workday with
the use of a cane.
6. After careful consideration of the entire record, the undersigned finds that
beginning on May 1, 2008, the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except
he is now subject to the additional limitations expressed in the February 17, 2009
opinion of treating physician Thomas O’Brien, M.D., found at exhibit 10F. He
can lift up to ten pounds occasionally. He can sit, stand, or walk for up to two
hours each, both at one time and cumulatively over the course of an eight-hour
workday. He is restricted to occasional use of the right hand for reaching,
handling, fingering, feeling, pushing, or pulling activities. He can only
occasionally use either foot for the operation of foot controls. He can only
occasionally perform all postural activities. He can have no more than occasional
exposure to unprotected heights or moving machinery, and he can no more than
occasionally operate a motor vehicle.
7. Since June 4, 2004, the claimant has been unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).
8. Prior to the established disability onset date, the claimant was a younger
individual age 18-44. The claimant’s age category has not changed since the
established disability onset date (20 CFR 404.1563 and 416.963).
9. The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).
10. Prior to May 1, 2008, transferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled” whether or not
the claimant has transferable job skills. Beginning on May 1, 2008, the claimant
has not been able to transfer job skills to other occupations (See SSR 82-41 and
20 CFR Part 404, Subpart P, Appendix 2).
11. Prior to May 1, 2008, considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
12. Beginning on May 1, 2008, considering the claimant’s age, education, work
experience, and residual functional capacity, there are no jobs that exist in
significant numbers in the national economy that the claimant can perform (20
CFR 414.1560(c), 404.1566, 416.960(c), and 416.966).
13. The claimant was not disabled prior to May 1, 2008, but became disabled on
that date and has continued to be disabled through the date of this decision
(20 CFR 404.1520(g) and 416.920(g)).
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 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.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th
Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); 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
his “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 claimant, but also, considering claimant’s age,
education, and work experience, any other relevant work that exists in the national economy in
significant numbers regardless of whether such work exists in the immediate area in which
claimant lives, or whether a specific job vacancy exists, or whether claimant would be hired if he
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 he 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 he 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 him presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to his past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [his] 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, extertional and
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).
C. The ALJ’s Five -Step Evaluation of Plaintiff
In the instant case, the ALJ resolved the Plaintiff’s claim at step five 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 he 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. At step four, the ALJ found that Plaintiff was unable
to perform any past relevant work. At step five, the ALJ issued an RFC that covered the period
before May 1, 2008, the date on which the ALJ determined that Plaintiff became disabled, and a
separate RFC covering Plaintiff’s limitations after May 1, 2008. The ALJ determined that prior
to May 1, 2008, Plaintiff’s RFC allowed him to perform sedentary work, except that he could sit
for six hours in an eight-hour workday, and could stand or walk for six hours in an eight-hour
workday with the use of a cane (“the pre-May 1, 2008 RFC”). The ALJ further determined that
beginning on May 1, 2008, Plaintiff’s RFC allowed him to perform sedentary work subject to
additional limitations expressed by Dr. Thomas O’Brien, which included: occasionally lifting ten
pounds; sitting, standing, and walking for up to two hours each; occasional use of either foot for
the operation of foot controls; occasional performance of all postural activities; occasional
exposure to unprotected heights or moving machinery; and occasional operation of a motor
vehicle (“the post-May 1, 2008 RFC”). Further, the ALJ found that, prior to May 1, 2008,
considering Plaintiff’s age, education, prior unskilled work experience, and RFC, there were jobs
that exist in significant numbers in the national economy that Plaintiff could have performed, but
that beginning on May 1, 2008, there were no jobs that existed in significant numbers in the
national economy that he could perform. AR 14-22.
D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by: (1) failing to properly evaluate the medical
opinions of record and by not resolving the inconsistencies between the record and the RFC
finding; (2) not including a function-by-function assessment in the RFC assessment as required
by SSR 96-8p; (3) failing to re-contact Dr. O’Brien or another medical expert to testify regarding
the onset date of the Plaintiff’s disability; and (4) improperly evaluating the credibility of
Plaintiff’s statements as required by SSR 96-7p. DE 12-1 at 1-2. Plaintiff therefore requests that
the Commissioner’s decision be reversed and benefits awarded, or, alternatively, that this case be
remanded for further consideration by a different ALJ. Id. at 19.
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
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 (6th Cir. 1994). The Court addresses each of Plaintiff’s assertions of error
1. Whether the ALJ improperly evaluated the medical opinions of record.
Plaintiff contends that the ALJ failed to properly evaluate the medical opinions of record
and failed to resolve the inconsistencies between such opinions and the pre-May 1, 2008 RFC
assessment. DE 12-1 at 9-12. Plaintiff specifically alleges inconsistencies between the preMay 1, 2008 RFC and the medical source statement provided by his treating physician,
Dr. O’Brien. Id. at 9-10. Plaintiff argues that while the ALJ gave significant weight to
Dr. O’Brien’s opinion for purposes of the post-May 1, 2008 RFC, the ALJ failed to properly give
weight to this opinion for the pre-May 1, 2008 RFC. Id. at 10-12.
Although not discussed by Plaintiff, the Court notes that Dr. O’Brien issued two separate
medical source statements that contained opinions as to Plaintiff’s functional limitations, one on
February 17, 2009 and one on May 24, 2010. AR 367, 376. The opinions are largely similar,
although the latter opinion is more restrictive in several ways: Plaintiff requires the use of a cane
to ambulate, is unable to ever climb ladders or scaffolds, balance, crouch, or crawl, cannot be
exposed to unprotected heights, cannot “walk a block … on rough or uneven surfaces” or “climb
a few steps” at a reasonable pace, and “may require laying down” for 30 minutes once or twice
per day. AR 371-76. The February 17, 2009 medical source statement, which was accorded
controlling weight and incorporated into the post-May 1, 2008 RFC, opined that Plaintiff can sit,
stand, or walk for up to two hours each, both at one time and cumulatively over the course of an
eight-hour workday. AR 19, 363.
The ALJ’s pre-May 1, 2008 RFC limited Plaintiff to sedentary work with additional
restrictions limiting Plaintiff to sitting for six hours in an eight-hour workday, and standing or
walking for six hours in an eight-hour workday with the use of a cane. AR 15. The ALJ stated
the following with respect to his pre-May 1, 2008 RFC assessment:
The claimant did not apply for benefits until September 2008, shortly after his
neck surgery. Considering the evidence as a whole, it is reasonable to conclude
that the claimant’s sit/stand limitations did not arise until around the time  that
he decided to proceed with that surgery in 2008. The chronology of events as
outlined in the record support this conclusion. Particularly, Dr. O’Brien’s
treatment notes provide a good documentation of this progression. Dr. O’Brien’s
notes indicate that the [claimant] was having increased neck pain and back pain
when shifting from sitting to standing in 2007 and 2008, but that he was still able
to work as a barber … As of the May 14, 2008 visit, this pain progressed to the
point that he has been unable to work in the barbershop … Accordingly, based on
the record as a whole, I conclude that a reasonable finding on the onset date is
May 1, 2008.
AR 18-19. The ALJ also noted that “[n]o medical opinions concerning the claimant’s residual
functional capacity were rendered during [the period prior to May 1, 2008],” and that the
February 17, 2009 medical source statement was “not consistent with the claimant’s work
activity reported in Dr. O’Brien’s treatment notes during this period [prior to May 1, 2008].” Id.
Plaintiff fails to identify any specific inconsistencies between Dr. O’Brien’s opinion and
the RFC in his brief, instead claiming that Dr. O’Brien’s opinion should have been applied to the
pre-May 1, 2008 RFC based on his continual treatment of Plaintiff since September of 2006.
DE 12-1 at 10. Notwithstanding the paucity of this argument, the Court agrees that this case
should be remanded for further consideration of Plaintiff’s RFC.
In support of the pre-May 1, 2008 RFC, the ALJ stated that Dr. O’Brien’s notes did not
“suggest particularly limiting conditions” and that there was “no mention in any of Dr. O’Brien’s
treatment notes about any sit/stand problems.” AR 18. However, this reasoning is directly
contradicted by the evidence of record. In September of 2006, Dr. O’Brien noted lower back pain
that radiated into the right buttock and proximal thigh that was “brought on by standing.”
AR 304. During the same visit, Dr. O’Brien noted that Plaintiff’s neck pain was caused by “static
positioning such as working as a barber.” AR 304. This is consistent with a subsequent MRI of
Plaintiff’s cervical spine, performed on September 20, 2006, that revealed central stenosis and a
central and bilateral paracentral posterior disk bulge. AR 308. Significantly, Dr. O’Brien also
stated during the September 14, 2006 visit that Plaintiff was “having an increasingly difficult
time performing his job requirements.” AR 304.
In December of 2006, Dr. O’Brien noted that the aforementioned MRI demonstrated
cervical degenerative disc disease with severe narrowing of the canal, and opined that the
severity of Plaintiff’s cervical stenosis made him a candidate for surgical intervention. AR 302.
Dr. O’Brien diagnosed Plaintiff with cervical spondylosis with cervical radiculopathy, as well as
lumbar degenerative disc disease with lumbar radiculopathy. AR 302. Dr. O’Brien additionally
noted that Plaintiff’s chronic back pain was “brought on by activities such as prolonged
standing.” AR 302.
During a subsequent visit in April of 2007, Plaintiff elected to proceed with surgery due
to the severity of his cervical pain. AR 300. Upon examination, Plaintiff complained of severe
lower back pain “that limits his ability to sit and stand.” AR 300. He complained of “intractable
pain,” which included pain when “maintaining prolonged sitting and standing position[s].”
AR 300. Dr. O’Brien identified “painful trigger points” in the lumbar area, and noted that
Plaintiff had a limited range of motion. AR 300. Dr. O’Brien also discussed operating on
Plaintiff’s lumbar spine during this visit, but elected to first proceed with the cervical procedure
based on the quicker recovery time associated with that procedure. AR 301. He also prescribed a
lumbar orthosis (back brace) for Plaintiff to wear whenever he was in an upright position, which
would include sitting and standing. AR 301.
In August of 2007, Dr. O’Brien again noted that Plaintiff was experiencing severe lower
back, degenerative disc disease at the L5-S1 level with severe loss of disc height, right perineural
scarring, and lumbar radiculopathy. AR 297. He also noted that Plaintiff had pain “going from a
sitting to standing position.” AR 297. As such, the Court finds ample evidence in Dr. O’Brien’s
notes indicating that Plaintiff was experiencing pain that limited his ability to sit and stand.
Although an ALJ “need not discuss every piece of evidence in the record” he also “may not
ignore an entire line of evidence that is contrary to the ruling.” Craig v. Colvin, No. 3:12-cv0333, 2014 WL 1287178, at *12 (M.D. Tenn. Mar. 28, 2014) (citing McCombs v. Barnhart, 106
F. App’x 480, 484 (7th Cir. 2004)). See also Rogers v. Sec’y of Health & Human Servs., 786
F.2d 1166 (6th Cir. 1986) (“A single piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence.”)
(internal citation omitted).
The ALJ’s opinion is further complicated by its failure to explain the weight given to the
non-treating sources. Dr. Carol Varnado performed a consultative examination of Plaintiff on
November 21, 2008, which the ALJ used to support his determination that Dr. O’Brien’s medical
source statement did not apply to the June 4, 2004 onset date alleged by Plaintiff:
Considering the clinical findings with the chronology of his treatment and the
evidence that he continued to work as a barber through 2008, it is reasonable to
conclude that Dr. O’Brien’s RFC of February 2009 was not applicable as of the
alleged onset date. Crediting Dr. Varnado’s consultative examination, the
claimant’s limitations were not disabling in November 2008. It should be noted
that Dr. Varnado did not address any sit/stand limitations.
AR 18. This explanation is misleading, however, as it suggests that Dr. Varnado found that
Plaintiff was not disabled in November of 2008. In reality, it is unclear whether Dr. Varnado
even examined Plaintiff. The examination note indicates that Plaintiff was examined by Alma
Barnes, a person whose profession is not identified. AR 282. The note also states the following
with respect to the scope of the examination:
We were asked only to provide the patient’s height, weight and blood pressure
and the patient’s best corrected visual acuity by Titmus or Snellen’s examination,
the gait, station and the range of motion of the Cervical and Dorsolumbar Spines.
AR 282. As such, by the examiner’s own admission, a very limited examination of Plaintiff took
place in November of 2008, which the ALJ failed to acknowledge. More significantly, the ALJ’s
statement that Dr. Varnado found that Plaintiff’s limitations were not disabling is simply
unfounded. In fact, Dr. Varnado specifically declined to provide a medical assessment on the
issue: “Because of the brevity and scope of this evaluation, I am unable to make a determination
about the patient’s ability to perform the stated medical assessment tasks.” AR 284. The ALJ
thus credited Dr. Varnado’s opinion with an unspecified amount of weight despite Dr. Varnado’s
explicit statement that she could not provide a medical opinion as to any limitations.
Furthermore, the ALJ stated that Dr. Varnado “concluded that the claimant had the [RFC]
to occasionally lift 10 pounds, and perform standing and walking with the aid of a cane.” AR 17.
Again, the ALJ misrepresents the report. The examiner instead noted that Plaintiff “lifted ten
pounds with each hand, on a one time basis.” AR 283. The examiner also stated that Plaintiff’s
mobility was “decreased,” and that his gait was “[u]nsteady, broad-based and with a cane and a
limp favoring his right lower extremity.” AR 283. The Court reiterates that Dr. Varnado
expressly declined to provide a medical opinion as to any limitations due to the limited scope of
the examination, including those involving Plaintiff’s ability to lift, stand, and walk. AR 284.
Plaintiff additionally claims that the ALJ violated SSR 96-8p by failing to assign or make
clear the weight given to Dr. Anita Johnson’s opinion. DE 12-1 at 11. Contrary to Plaintiff’s
argument, however, SSR 96-8p does not require the ALJ to assign specific weight to the opinion
of a non-treating State agency physician. SSR 96-8p requires the ALJ to give controlling weight
to the opinion of a treating physician if the opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the case record,” 1996 WL 374184, at *7.
However, SSR 96-6p does require the ALJ to explain the weight given to the opinions of
State agency physicians, 1996 WL 374180, at *2, which the ALJ failed to do. This is significant
because, notwithstanding Plaintiff’s erroneous argument that the ALJ did not rely on a medical
opinion in formulating the RFC (DE 12-1 at 10), the ALJ clearly utilized Dr. Johnson’s opinion
in determining the RFC, which concluded that Plaintiff could sit for six hours and stand or walk
for six hours in an eight-hour workday. AR 15, 352. Nevertheless, it appears that the ALJ only
partially incorporated Dr. Johnson’s opinion into the pre-May 1, 2008 RFC. The ALJ failed to
discuss Dr. Johnson’s additional restrictions with respect to lifting, carrying, pushing, and
pulling. AR 352. Nor did the ALJ explain why the RFC did not include any of the postural
limitations in Dr. Johnson’s opinion. AR 353. An ALJ’s failure to explain why he did not adopt
the limitations of a medical source whose opinion he accorded significant weight constitutes
reversible error. Moore v. Colvin, No. 2:14-cv-455, 2015 WL 5675805, at *7 (S.D. Ohio Sept.
28, 2015). See also Ledford v. Colvin, No. 15-217, 2016 WL 4045427, at *5 (E.D. Ky. June 21,
2016), report and recommendation adopted, No. 2015-217, 2016 WL 4046993 (E.D. Ky.
July 27, 2016) (“[T]he ALJ must meaningfully explain why certain limitations are not included
in the RFC determination-especially when such limitations are set forth in opinions the ALJ
weighs favorably.”). See also Marshall v. Comm’r of Soc. Sec., No. 3:14-cv-465, 2015 WL
7273113, at *6 (S.D. Ohio Nov. 17, 2015), report and recommendation adopted, 2015 WL
8682785, at *1 (S.D. Ohio Dec. 11, 2015) (remanding where ALJ gave opinions significant
weight, but failed to explain why certain limitations were not included in the RFC finding).
The Court acknowledges that a finding that Plaintiff was somehow deprived of a
substantial procedural right solely by the ALJ’s failure to identify the weight given to a nonexamining State physician would “aggravate controlling Sixth Circuit precedent.” Johnson v.
Astrue, No. 1:09-cv-2959, 2010 WL 5559542, at *6 (N.D. Ohio Dec. 3, 2010), report and
recommendation adopted, No. 1:09-cv-2959, 2010 WL 5478604 (N.D. Ohio Dec. 30, 2010).
However, when the ALJ’s failure to articulate his reasons for rejecting or discounting the
opinions of other sources prevents the reviewing Court from evaluating whether the
administrative decision is supported by substantial evidence, remand is justified. Sears v. Colvin,
No. 1:11-cv-0096, 2015 WL 3606800, at *6 (M.D. Tenn. June 8, 2015).
Here, the ALJ gave controlling weight to the February 17, 2009 opinion of the treating
physician, but only for purposes of the post-May 1, 2008 RFC. The ALJ supported this qualified
acceptance of Dr. O’Brien’s opinion by noting that it was not rendered prior to May 1, 2008.
AR 19. Defendant echoes this statement, noting that Dr. O’Brien’s February 17, 2009 opinion
was “written in the present tense” and “did not opine on [Plaintiff’s] limitations during the period
before May 1, 2008[.]” DE 13 at 11. This argument is without merit, however, as the ALJ
incorporated the opinion of Dr. Johnson into the pre-May 1, 2008 RFC, even though this opinion
was similarly not rendered prior to May 1, 2008. AR 359. 3 There is no indication that
Dr. Johnson intended for her opinion to apply prior to May 1, 2008. On the contrary,
Dr. Johnson’s RFC assessment was actually intended to cover the period beginning on June 30,
2009, well after May 1, 2008. AR 351. The ALJ failed to explain why Dr. Johnson’s opinion, but
not Dr. O’Brien’s, applied to the pre-May 1, 2008 RFC. The ALJ cannot refuse to apply
Dr. O’Brien’s RFC retroactively because it was not rendered prior to May 1, 2008, (DE 13 at
11), then proceed to incorporate a non-examining State physician’s RFC retroactively into the
pre-May 1, 2008 RFC. See Karger v. Comm’r of Soc. Sec., 414 F. App’x 739, 749 (6th Cir.
2011) (“Inaccuracies, incomplete analysis, and unresolved conflicts of evidence can serve as a
basis for remand.”). Accordingly, the Court concludes that the ALJ’s reasoning does not comply
with the requirement of 20 C.F.R. § 404.1527 that good reasons be provided for the weight
assigned to the treating physician’s opinion, and therefore remands this case for further
2. Whether the ALJ erred by failing to include a function-by-function assessment in the
Plaintiff contends that the ALJ’s failure to include a function-by-function assessment in
his pre-May 1, 2008 RFC constitutes material error. DE 12-1 at 12. Plaintiff again cites SSR 963
Dr. Johnson’s opinion was issued on December 29, 2008, nearly eight months after May 1, 2008.
8p as support, arguing that that Dr. O’Brien’s medical opinion and the ALJ’s decision are
inconsistent and that the RFC does not resolve the alleged inconsistencies pertaining to postural
limitations as required by SSR 96-8p. Id. Plaintiff also argues that that the ALJ erred by failing
to include any “mental, non-exertional limitations” resulting from his alleged pain. Id. at 13.
With respect to the latter argument, counsel for Plaintiff explicitly stated during the
hearing before the ALJ that there was no mental component to Plaintiff’s condition, and that the
claim was based solely on alleged physical impairments. AR 33. The argument is therefore
without merit, as the ALJ is not required to “discuss those capacities for which no limitation is
alleged.” Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. 2002) (internal
Nonetheless, Plaintiff notes that SSR 96-8p requires the ALJ to assess both the exertional
and nonexertional capabilities of the claimant. 4 However, it does not require the ALJ to provide
a written function-by-function assessment in the written opinion. See Delgado, 30 F. App’x at
547 (“Although a function-by-function analysis is desirable, SSR 96-8p does not require ALJs to
produce such a detailed statement in writing.”) (internal citation omitted). Regardless, because
this matter will be remanded for further proceedings to include a new RFC, this assertion of error
is rendered moot.
3. Whether the ALJ erred by not re-contacting Dr. O’Brien or another medical expert to
testify regarding the onset date of the Plaintiff’s disability.
Plaintiff alleges that the ALJ erred in failing to re-contact Dr. O’Brien or retain a medical
expert to testify regarding the onset date of Plaintiff’s disability. DE 12-1 at 13. Plaintiff cites
SSR 96-5p as support for this argument, stating that “an ALJ must make ‘every reasonable
Exertional capacities include lifting, carrying, standing, walking, sitting, pushing, and pulling.
Nonexertional capacities include manipulative, postural, visual, communicative, and mental functions.
SSR 96-8p, 1996 WL 374184, at *5-6 (SSA July 2, 1996).
effort’ to recontact treating sources for clarification of their opinion when the ALJ cannot
ascertain the basis of the opinion from the record.” Id. According to Plaintiff, a physician is
required to make the finding as to when the Plaintiff was no longer able to perform full-time
work, and none of the medical opinions of record opined as to the onset date of disability. Id. at
14. Plaintiff argues that this decision was a medical question that the ALJ could not make on his
Notably, Plaintiff fails to reference SSR 83-20, the interpretation ruling that specifically
involves the Commissioner’s policy regarding the “relevant evidence to be considered when
establishing the onset date of disability[.]” 1983 WL 31249, at *1. SSR 83-20 provides multiple
factors that the ALJ must consider in determining a claimant’s disability onset date, including the
claimant’s allegations, work history, and medical evidence. Id. at *2. The established onset date
“must be fixed based on the facts and can never be inconsistent with the medical evidence of
record.” Id. at *3. SSR 83-20 furthers states the following with respect to obtaining a medical
expert’s opinion as to the disability onset date:
In some cases, it may be possible, based on the medical evidence to reasonably
infer that the onset of a disabling impairment(s) occurred some time prior to the
date of the first recorded medical examination, e.g., the date the claimant stopped
working. How long the disease may be determined to have existed at a disabling
level of severity depends on an informed judgment of the facts in the particular
case. This judgment, however, must have a legitimate medical basis. At the
hearing, the [ALJ] should call on the services of a medical advisor when onset
must be inferred. If there is information in the file indicating that additional
medical evidence concerning onset is available, such evidence should be secured
before inferences are made.
Despite this mandate, the Court notes that it is the claimant’s burden to provide a
complete record, which is defined as evidence complete and detailed enough to enable the
Commissioner to make a disability determination. Landsaw v. Sec’y of Health & Human Servs.,
803 F.2d 211, 214 (6th Cir. 1986) (internal citation omitted). Plaintiff points to no evidence,
conflicting or otherwise, that would have required the ALJ to contact Dr. O’Brien to ascertain his
opinion as to the onset date pursuant to SSR 96-5p. Similarly, despite claiming that the ALJ was
required under SSR 96-6p to obtain an updated medical expert opinion, Plaintiff fails to identify
anything in the record that would trigger this affirmative duty. Indeed, Plaintiff fails to cite any
medical evidence of record at all.
Nevertheless, the Court finds that the evidence of record is sufficiently unclear with
respect to the disability onset date that consultation with a medical expert was warranted in this
case. SSR 83-20 states that the ALJ “should” contact a medical advisor when the onset date must
be inferred. 1983 WL 31249, at *3. At least one other Circuit has determined that “should”
means “must” with respect to SSR 83-20. See Armstrong v. Comm’r of Soc. Sec. Admin., 160
F.3d 587, 590 (9th Cir. 1998) (“If the medical evidence is not definite concerning the onset date
and medical inferences need to be made, SSR 83-20 requires the administrative law judge to call
upon the services of a medical advisor and to obtain all evidence which is available to make the
determination.”) (emphasis added) (internal citation and quotations omitted). In light of the
uncertainty as to the onset of Plaintiff’s disabling condition, the Court similarly finds that the
ALJ should have retained a medical expert to assist in the determination of the disability onset
Instead, the ALJ found that May 1, 2008 was a reasonable onset date based on his finding
that Plaintiff’s “sit/stand limitations” did not arise until July of 2008. AR 18. The ALJ
acknowledged that Dr. O’Brien’s office notes indicated that Plaintiff was experiencing increased
neck and back pain “when shifting from sitting to standing” before 2008, 5 but noted that Plaintiff
This admission by the ALJ contradicts his previous statement in the opinion that there was “no mention
in any of Dr. O’Brien’s treatment notes about any sit/stand problems.” AR 18. As previously discussed,
was still able to work as a barber until May 14, 2008. AR 18. Thus, the sole basis for establishing
May 1, 2008 as the onset date was Plaintiff’s ability to work as a barber until May 14, 2008.
AR 293. However, the ALJ conceded that there was no evidence indicating that Plaintiff’s work
as a barber constituted substantial gainful activity:
There is no reported income from the claimant’s work as a barber. He testified
that this was cash-based employment. Therefore, the record does not include
earnings records for this employment. The claimant denied that his earnings
derived from this activity reached substantial gainful activity level earnings.
While there are credibility issues with the claimant’s testimony, the evidence of
record is insufficient to find that his employment as a barber constitutes
substantial gainful activity.
AR 14. This is important to a determination of a disability onset date, as the Act clearly defines
disability as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment ….” 42 U.S.C. § 432(d)(1)(A) (emphasis
added). SSR 83-20 defines the onset date of disability as “the first day an individual is disabled
as defined in the Act and the regulations.” 1983 WL 31249, at *1.
Here, the ALJ concluded that Plaintiff’s work as a barber did not constitute substantial
gainful activity, a conclusion that is supported by Plaintiff’s admission that he did not have a
license to operate as a barber, Plaintiff’s statement that his work as a barber was “just something
on the side,” and the acknowledgement of Plaintiff’s attorney that he could not locate any record
of earnings involving Plaintiff’s work as a barber. AR 35, 61-62. 6 Nevertheless, the ALJ
effectively determined that this work did represent substantial gainful activity for purposes of
there is ample evidence that Plaintiff was experiencing difficulty with sitting and standing well before
July of 2008. AR 297, 300-02, 304.
The Court also notes that Dr. O’Brien’s treatment records do not definitively establish that parameters of
Plaintiff’s work as a barber. Dr. O’Brien initially stated that Plaintiff “works as a barber” (AR 304), later
stated that Plaintiff “runs a barber shop” (AR 296), then stated that Plaintiff was “working as a barber”
(295), and finally stated during his last documented visit that Plaintiff “owns a barber shop.” AR 291.
establishing the disability onset date, noting that despite documented increases in neck and back
pain, Plaintiff was “still able to work as a barber.” AR 18.
The Court finds that this was improper, as the onset date “should be set on the date when
it is most reasonable to conclude from the evidence that the impairment was sufficiently severe
to prevent the individual from engaging in [substantial gainful activity] (or gainful activity) for a
continuous period of at least 12 months or result in death.” SSR 83-20, 1983 WL 31249, at *3.7
Plaintiff testified that he did not work for a specified amount of time and did not cut hair on a
daily basis, but instead “cut hair here and there,” and made approximately $50.00 per week.
AR 36-38. He thus made approximately $200 per month, which is well below the regulatory
amount that creates a presumption of substantial gainful activity. See 20 C.F.R.
§ 404.1574(b)(2)(ii)(B). See also Miracle v. Celebrezze, 351 F.2d 361, 379 (6th Cir. 1965)
(“Intermittent, sporadic or infrequent activity does not constitute ability to ‘engage in substantial,
gainful activity’ precluding establishment of disability under Social Security Act.”) (internal
citation omitted). Therefore, notwithstanding the ALJ’s determination that Plaintiff’s testimony
was not credible, the Court finds that the Plaintiff’s undefined work as a barber through May of
2008 did not represent substantial evidence sufficient to establish May 1, 2008 as a disability
onset date. See Blankenship, 874 F.2d at 1124 (holding that the Commissioner must support any
The Court admits confusion regarding the parenthetical phrase “or gainful activity” in SSR 83-20, and is
unable to locate any case law that explains the amount of work necessary to constitute “gainful activity”
for purposes of establishing a disability onset date. However, in light of the ambiguity regarding
Plaintiff’s work as a barber, as discussed above, the Court finds that there is insufficient evidence to
conclude that this work represented “gainful activity” for purposes of establishing the disability onset
date. The Court also finds that the vague nature of the phrase “gainful activity” in this context further
supports its conclusion that the ALJ should have relied on the services of a medical expert in establishing
the disability onset date.
determination of a disability onset date with substantial evidence) (citing Willbanks v. Sec’y of
Health & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988)).
The Court emphasizes that it does not find fault with the ALJ’s credibility determination,
as discussed below, nor does it find that the ALJ improperly considered Plaintiff’s work as a
barber. See Ashworth v. Sullivan, 951 F.2d 348 (table), 1991 WL 278961, at *7 (6th Cir. 1991)
(finding that the ALJ properly considered the claimant’s part-time work, even though it did not
qualify as “substantial gainful activity”). Indeed, work that is not performed on a full-time basis
may still be considered “substantial gainful activity” for purposes of determining disability. See
20 C.F.R. § 404.1572(a) (“Your work may be substantial gainful activity even if it is done on a
part-time basis or if you do less, get paid less, or have less responsibility than when you worked
before.”). See also Hammond v. Chater, 116 F.3d 1480 (table), 1997 WL 338719, at * 2 (6th Cir.
June 18, 1997) (“[T]he regulations define ‘substantial gainful activity’ as including part-time
work.”). However, the Court concludes that the ALJ improperly relied on Dr. O’Brien’s medical
note documenting Plaintiff’s ability to work as a barber through May of 2008 as a basis for
establishing a disability onset date, in light of the ALJ’s own determination that such work did
not constitute substantial gainful activity. In his opinion, the ALJ implicitly considered Plaintiff’s
work as a barber substantial gainful activity by discounting the severity of Plaintiff’s
documented complaints of pain and problems with sitting and standing based on his work as a
barber, yet explicitly found that such work was not substantial gainful activity. The Court
therefore does not agree with the ALJ’s conclusion that May 1, 2008, the approximate date on
which Plaintiff stated he could no longer work as a barber, represents a reasonable calculation of
Plaintiff’s disability onset date.
Because of this determination, the Court finds that on remand, the ALJ must apply
SSR 83-20 in establishing Plaintiff’s disability onset date. See Blankenship, 874 F.2d at 1124
(reversing decision of Commissioner and remanding in part to “call on the services of a medical
advisor in determining the disability onset date”). The Court notes that where the medical
evidence regarding the onset date of the disability is ambiguous and the ALJ must infer the onset
date, as is the case here, “SSR 83-20 and the substantial evidence rule dictate ... that an ALJ in a
situation of this kind must call upon the services of a medical advisor rather than rely on his own
lay analysis of the evidence.” Walton v. Halter, 243 F.3d 703, 709 (3d Cir. 2001). As noted by
the Third Circuit in Walton, this conclusion is consistent with the holdings of the Courts of
Appeals in other circuits. See Grebenick v. Chater, 121 F.3d 1193, 1201 (8th Cir. 1997) (“[i]f the
medical evidence is ambiguous and a retroactive inference is necessary, SSR 83-20 requires the
ALJ to call upon the services of a medical advisor to insure that the determination of onset is
based upon a ‘legitimate medical basis’”); Bailey v. Chater, 68 F.3d 75, 79 (4th Cir. 1995)
(requiring enlistment of a medical expert when disability onset is ambiguous despite SSR 8320’s ostensibly permissive language); Spellman v. Shalala, 1 F.3d 357, 362 (5th Cir.) (1993)
(“We therefore hold that in cases involving slowly progressive impairments, when the medical
evidence regarding the onset date of a disability is ambiguous and the [Commissioner] must infer
the onset date, SSR 83-20 requires that that inference be based on an informed judgment. The
[Commissioner] cannot make such an inference without the assistance of a medical advisor.”);
DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir.1991) (“In the event that the medical evidence
is not definite concerning the onset date and medical inferences need to be made, SSR 83-20
requires the administrative law judge to call upon the services of a medical advisor and to obtain
all evidence which is available to make the determination.”).
4. Whether the ALJ properly evaluated the credibility of Plaintiff’s statements.
Plaintiff finally argues that the ALJ improperly evaluated his credibility in violation of
SSR 96-7p. 8 According to Plaintiff, the ALJ failed to support with substantial evidence his
conclusion that Plaintiff’s work as a part-time barber prior to May 1, 2008 demonstrated no
particular limitation with regard to standing, sitting, or walking. Id. at 16-17. However, the Court
declines to assess the merit of Plaintiff’s assertion of error in light of its ruling that this case be
remanded for further consideration based on the foregoing analysis.
For the above stated reasons, Plaintiff’s motion for judgment on the administrative record
(DE 12) is GRANTED. The Court hereby REVERSES the decision of the Commissioner and
REMANDS this case for further proceedings consistent with this ruling
An appropriate Order will accompany this memorandum.
BARBARA D. HOLMES
United States Magistrate Judge
SSR 96-7p has been superseded by SSR 16-3p, which became effective on March 28, 2016. However,
because Plaintiff’s complaint was filed in May of 2012, SSR 96-7p applies to this claim.
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