King v. Social Security Administration
MEMORANDUM OPINION OF THE COURT. Signed by Magistrate Judge Barbara D. Holmes on 3/28/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
JAMES ALBERT KING, JR.
NANCY A. BERRYHILL
Acting Commissioner of
Social Security 1
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain
judicial review of the final decision of the Social Security Administration (“Commissioner”)
denying his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”), as provided under Titles II and XVI of the Social Security Act (“the Act”). The case is
currently pending on Plaintiff’s motion for judgment on the administrative record (Docket Entry
No. 14), to which Defendant has responded (Docket Entry No. 18). 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. 21).
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
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.
Plaintiff filed an application for DIB and SSI on June 15, 2010. See Transcript of the
Administrative Record (Docket Entry No. 9) at 60-61. 2 He alleged a disability onset date of
March 1, 2010. AR 60-61. Plaintiff asserted that he was unable to work due to back pain, a
bulging disc, herpes, pancreatitis, and illiteracy. AR 74, 76. 3
Plaintiff’s applications were denied initially and upon reconsideration AR 60-63.
Pursuant to his request for a hearing before an administrative law judge (“ALJ”), Plaintiff
testified at a hearing before ALJ Marty S. Turner on November 7, 2011. AR 26. On January 31,
2012, the ALJ denied the claim. AR 10-12. The Appeals Council denied Plaintiff’s request for
review of the ALJ’s decision on April 15, 2013 (AR 1-3), thereby making the ALJ’s decision the
final decision of the Commissioner. This civil action was thereafter timely filed, and the Court
has jurisdiction. 42 U.S.C. § 405(g).
II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on January 31, 2012. AR 10. Based upon the
record, the ALJ made the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2014.
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.
Medical records also demonstrated evidence of high blood pressure, acid reflux, and alcohol abuse.
2. The claimant has not engaged in substantial gainful activity since March 1,
2010, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairment: lumbar degenerative disc
disease (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of 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 the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except the claimant is limited to
occasional climbing of ramps and stairs. The claimant can never climb ropes,
ladders, or scaffolds. The claimant is limited to occasional balancing,
stooping, kneeling, crouching, and crawling. The claimant is to avoid
exposure to hazardous heavy moving machinery and unprotected heights.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565
7. The claimant was born on December 21, 1962 and was 47 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date
(20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
9. 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 (See SSR 82-41 and 20 CFR Part 404, Subpart P,
10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security
Act, from March 1, 2010, 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 the claimant, but also, considering the 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 the
claimant lives, or whether a specific job vacancy exists, or whether the 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 12month 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, exertional 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 Plaintiff’s claim at step five of the five-step process.
The ALJ determined 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 found that Plaintiff’s RFC allowed him to
perform work with express limitations to account for his severe impairments, and that
considering his age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. AR 15-20.
D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by: (1) failing to properly consider all of his alleged
impairments and failing to provide sufficient reasons for not finding such impairments to be
severe; (2) failing to include a function-by-function assessment in the RFC; (3) ascribing an RFC
that is not supported by the record as a whole; (4) improperly evaluating Plaintiff’s credibility;
and (5) failing to properly consider Plaintiff’s illiteracy. DE 15 at 1-2. Plaintiff therefore requests
that this case be reversed and benefits awarded, or, alternatively, that this case be remanded
pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration by a new ALJ. Id. at
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, 771 F.2d at 973. Furthermore, a court can reverse
the decision and immediately award benefits if all essential factual issues have been resolved and
the record adequately establishes a claimant’s entitlement to benefits. Faucher v. Secretary, 17
F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (1994). The Court
will address each of Plaintiff’s assertions of error below.
1. Plaintiff’s alleged impairments.
Plaintiff first argues that the ALJ erred by finding that his additional conditions, which
allegedly include lumbar radiculopathy, osteopenia, pancreatitis, edema, bronchitis, and mild
emphysema, do not represent severe impairments. DE 15 at 6. Plaintiff claims the ALJ erred by
“failing to give sufficient reasons why he did not find them to be severe.” Id.
The Court is not persuaded by Plaintiff’s undeveloped argument. Plaintiff does nothing
more than cite to various pages in the record indicating that Plaintiff has been diagnosed with the
aforementioned conditions. 4 A diagnosis, however, does not demonstrate a disabling condition.
See Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 551 (6th Cir. 2014) (“[D]isability is
determined by the functional limitations imposed by a condition, not the mere diagnosis of it.”)
(internal citation omitted); Krakow v. Comm’r of Soc. Sec., No. 13-14388, 2015 WL 1301300, at
*10 (E.D. Mich. Mar. 23, 2015) (“[S]imply because [a claimant] suffers from certain conditions
or carries certain diagnoses does not equate to disability[.]”). Plaintiff merely claims, with no
supporting evidence, that these impairments “cause more than a slight abnormality” on his ability
to function. DE 15 at 6. This statement falls well short of establishing disability, which is
Plaintiff’s burden to carry. See Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th
Cir. 1994) (“Claimant bears the burden of proving his entitlement to benefits.”) (citing Halsey v.
Richardson, 441 F.2d 1230 (6th Cir. 1971)).
One such cited record is an “ER Registration” page that does not include any notations from a provider.
Plaintiff’s claim that the ALJ erred by failing to explain the reasons for not finding all of
these impairments to be severe is similarly unavailing. The ALJ explicitly discussed the basis for
his finding that Plaintiff’s hypertension and pancreatitis did not represent severe impairments.
AR 16. Moreover, Plaintiff cites no regulation or case law that requires the ALJ to provide the
reasoning behind each finding of a non-severe impairment. Conversely, the Sixth Circuit has
held that the ALJ is subject to no such requirement: “[W]e do not require an ALJ to discuss
every piece of evidence in the record to substantiate the ALJ’s decision.” Conner v. Comm’r of
Soc. Sec., 658 F. App’x 248, 254 (6th Cir. 2016) (internal citation omitted).
Finally, as noted by Defendant, even if the ALJ had erred by finding that these additional
impairments are not severe, such an error would not require reversal in light of the ALJ’s
determination that lumbar degenerative disc disease constitutes a severe impairment. AR 15. If
an ALJ finds that at least one of the claimant’s alleged impairments is severe in nature, as is the
case here, the claim survives the step two screening process, 5 and both severe and non-severe
impairments are considered by the ALJ in the remaining steps of the disability evaluation
process. 20 C.F.R. §§ 404.1523, 404.1545(a)(2). The fact that some of Plaintiff’s impairments
were not deemed to be severe at step two “is therefore legally irrelevant.” Anthony v. Astrue, 266
F. App’x 451, 457 (6th Cir. 2008) (internal citation omitted). Indeed, courts have consistently
held that an ALJ does not commit reversible error when the ALJ fails to find that some
impairments are severe but finds that other impairments are severe and proceeds to the next step
of the evaluation process. See, e.g., Maziarz v. Sec’y Health & Human Serv., 837 F.2d 240, 244
(6th Cir. 1987); McGlothin v. Comm’r of Soc. Sec., 299 F .App’x. 516, 522 (6th Cir. 2008);
See 20 C.F.R. § 404.1520(a)(4).
Anthony, supra; Fisk v. Astrue, 253 F. App’x. 580, 583 (6th Cir. 2007). Plaintiff’s argument is
2. The RFC. 6
Plaintiff next contends that the ALJ committed reversible error by failing to include a
function-by-function assessment in the RFC pursuant to Social Security Ruling (“SSR”) 96-8,
which states that when evaluating a claimant’s exertional and nonexertional capacities, “[e]ach
function must be considered separately[.]” 1996 WL 374184, at *5 (July 2, 1996). 7 Plaintiff also
claims that the ALJ “failed to include substantial limitations in the RFC finding correlating to
symptoms and limitations which were well-documented in the record.” DE 15 at 7.
With respect to this latter claim, the Court notes that Plaintiff makes no attempt to cite
any such “well-documented” limitations in his brief. The Court therefore deems this claim
waived. See Arellano v. Comm’r of Soc. Sec., No. 1:11-cv-804, 2012 WL 4038436, at *4 (W.D.
Mich. Sept. 13, 2012) (“Issues raised in a perfunctory manner are deemed waived.”) (internal
citations omitted); McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court
to … put flesh on its bones..”) (internal citation omitted).
Plaintiff’s additional argument that the ALJ’s decision must be reversed because the
ascribed RFC lacks a function-by-function assessment finds no support in this circuit. Although
Because Plaintiff’s second and third assertions of error involve the RFC, the undersigned will address
Plaintiff’s arguments pertaining to both in this section.
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 (July 2, 1996).
SSR 96-8p requires the ALJ to “assess [the claimant’s] work-related abilities on a function-byfunction basis,” this “does not require ALJs to produce such a detailed statement in writing.”
Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. 2002) (internal citation omitted).
Indeed, there is a difference “between what an ALJ must consider and what an ALJ must discuss
in a written opinion.” Adams v. Comm’r of Soc. Sec., No. 4:13-cv-22, 2014 WL 3368692, at *11
(E.D. Tenn. July 9, 2014) (quoting Delgado, 30 F. App’x at 547-48). Instead, the ALJ “need only
articulate how the evidence in the record supports the RFC determination, discuss the claimant’s
ability to perform sustained work-related activities, and explain the resolution of any
inconsistencies in the record.” Mathis-Caldwell v. Comm’r of Soc. Sec., No. 1:15-cv-532, 2016
WL 2731021, at *5 (W.D. Mich. May 11, 2016) (internal citation omitted).
The ALJ determined that Plaintiff could perform all of the exertional requirements
necessary to perform light work, 8 but limited Plaintiff’s ability to climb ramps and stairs. AR 16.
The RFC also provided limitations with respect to nonexertional capacities, including balancing,
stooping, kneeling, crouching, and crawling. AR 16. The ALJ discussed Plaintiff’s abilities to
lift, stand, and walk, as documented by multiple medical examiners. AR 17-18. The ALJ
supported his conclusions with a discussion of the objective medical findings, including
magnetic resonance imaging (“MRI”) and the examination findings of Dr. Ashok Saha and Dr.
Woodrow Wilson. AR 17-18. Plaintiff references no inconsistencies in the record that were
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
unaddressed by the ALJ, nor does he identify any evidence that contradicts the ALJ’s analysis.
His conclusory argument is therefore rejected.
Plaintiff additionally contends that the ascribed RFC is unsupported by the evidence of
record. DE 15 at 7. Plaintiff specifically argues that the ALJ’s decision must be reversed because
the opinions of State agency physicians Drs. Susan Warner and Marvin Cohn, which were
accorded significant weight by the ALJ (AR 18), were rendered in October of 2010 and February
of 2011, respectively, which was prior to “submission of the updated medical records.” DE 15 at
8. Plaintiff notes that following his hearing on November 7, 2011, he attempted to amend his
alleged onset date to March 18, 2011 (AR 230), and now complains that “there was no opinion
rendered in this case based on the evidence which was in the file from the amended onset date
forward.” DE 15 at 8. 9
Notably, Plaintiff again fails to reference any evidence, medical records or otherwise, in
support of his argument that the medical experts consulted in this matter failed to consider
evidence arising after March 18, 2011. This is unsurprising, as the Court sees no evidence in the
record of any documented treatment occurring after March 18, 2011. Plaintiff’s argument
therefore represents, at best, a disingenuous proclamation. Regardless, this effective request that
the Court to develop a basis for reversal of the Commissioner’s decision is deemed waived. See
Moore v. Comm’r of Soc. Sec., 573 F. App’x 540, 543 (6th Cir. 2014) (“Issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
Of note, it does not appear that Plaintiff’s late request for amendment of the alleged onset date was
granted, or even acknowledged, by the ALJ, as the opinion exclusively references Plaintiff’s initial
alleged disability onset date of March 1, 2010. AR 13, 15. On remand, the presiding ALJ should address
Plaintiff’s attempt at amending the alleged onset date.
waived.”) (citing United States v. Stewart, 628 F.3d 246, 256 (6th Cir. 2010)); see also Fields v.
Colvin, No. 3:13-cv-142, 2014 WL 4954599, at *3 (E.D. Tenn. Sept. 30, 2014) (“[T]he Court is
not required to undertake an open-ended review of the entirety of the administrative record.”).
The Court additionally notes that Plaintiff cites no regulation or relevant case law to
support his claim that remand is necessary to secure an additional consultative examination in
light of “updated medical evidence.” DE 15 at 7. Plaintiff also fails to identify what the “updated
medical evidence” entails, although a post-hearing letter submitted by counsel for Plaintiff to the
ALJ suggests an attempt to cite records from Good Health Associates (AR 231), where Plaintiff
received treatment from Dr. Ashok Saha between July of 2009 and February of 2011. AR 23762, 526-42. Plaintiff posits that a review of these records “could have changed” the opinions of
Drs. Warner and Cohn (DE 15 at 8), although the Court sees little evidence to support this claim.
Dr. Saha consistently reported that Plaintiff’s lower back pain was controlled with prescription
medication, that he exhibited no signs of distress during examinations, and recommended that
Plaintiff regularly exercise and “remain active.” AR 526-42. Dr. Saha diagnosed Plaintiff with
lumbar disc displacement with lower back pain (AR 237-53), a condition that Dr. Wilson was
aware of when he completed his consultative evaluation of Plaintiff in September of 2010. AR
429. Indeed, Dr. Wilson explicitly referenced Dr. Saha’s diagnosis of lumbar disc displacement
with lower back pain in his report, and cited an epidural steroid injection administered by Dr.
Saha. AR 429.
Nevertheless, Plaintiff accurately observes that Dr. Wilson’s report did not include an
opinion regarding any functional limitations created by Plaintiff’s physical impairment. This is
not insignificant, as the regulations require such an opinion from the consultative examiner:
The medical report must be complete enough to help us determine the nature,
severity, and duration of the impairment, and residual functional capacity. The
report should reflect your statement of your symptoms, not simply the medical
source’s statements or conclusions. The medical source’s report of the
consultative examination should include the objective medical facts as well as
observations and opinions.
20 C.F.R. § 404.1519n(b) (emphasis added). At least one other court has determined that a
consultative examiner’s failure to make any findings as to a claimant’s ability to work
necessitated reversal of the Commissioner’s decision to deny benefits. See Manning v. Sec’y of
Health & Human Servs., 881 F. Supp. 201, 204 (W.D. Pa. 1995) (“We agree with the claimant
that the ALJ improperly refused to order an additional psychological consultative examination or
a referral back to [the consultative examiner] for findings as to [the claimant’s] ability to work on
a regular and continuing basis.”). However, there are distinctions between the Manning case and
the instant matter. For one, the ALJ in Manning specifically denied the subject claimant’s request
for an additional consultative examination, or a referral back to the consultative examiner, during
the administrative hearing. See id. (“It is error for an ALJ to refuse to obtain a complete
consultative examination and then to deny benefits because the record lacks the evidence such an
examination could have produced.”) (internal citation omitted). In the instant case, counsel for
Plaintiff raised no objections to the admission of the report completed by Dr. Wilson into
evidence. AR 29-30. Nor did counsel request for an additional consultative examination, instead
advising the ALJ that Plaintiff would rely on his testimony and accompanying brief, which
contained no requests for additional findings from a consultative examiner. AR 30, 227-28. 10
Counsel for Plaintiff also advised the ALJ that he planned to obtain a medical source statement from a
treating physician (AR 29), although there is no indication that such evidence was submitted.
Additionally, the ALJ in Manning accorded substantial weight to the psychological
consultative examiner’s report despite its lack of opinion as to the claimant’s functional
limitations. See Manning, 881 F. Supp. at 204 (noting that the consultative examiner’s report was
the “primary evidence used by the ALJ”). Here, the ALJ granted significant weight to the
opinions of Drs. Warner and Cohn (AR 18), but discussed Dr. Wilson’s findings without
assigning any weight to his report: “While Dr. Wilson found some limited motion in the
claimant’s back, he also observed the claimant tandem walk, lift up on toes and back on heels,
and balance on each foot independently. Dr. Wilson also recorded a negative bilateral straight leg
test.” AR 17.
Finally, the consultative examiner’s report was the only medical evidence provided by an
examining source in Manning. In contrast, the ALJ discussed in detail the records documenting
Plaintiff’s treatment with Dr. Saha for almost two years. AR 17-19. Despite diagnosing Plaintiff
with lumbar radiculopathy in August of 2009 (AR 257) and lumbar disc displacement in October
of 2009 (AR 253), Dr. Saha continued to opine that Plaintiff’s symptoms were reasonably
controlled with prescription medication, and encouraged Plaintiff to stay active and exercise. Dr.
Saha and Dr. Tochukwu Ikejiani repeatedly returned Plaintiff to work following office visits
without recommending any functional limitations. AR 487-89. In June of 2010, Dr. Saha
provided his only physical restriction pertaining to Plaintiff’s lumbar condition, which
recommended that Plaintiff lift no more than 55 pounds (AR 239-40, 483), a restriction much
less favorable to Plaintiff than that contained in the ascribed RFC. AR 16. 11
Conspicuously absent from Plaintiff’s brief is any mention of Dr. Saha despite his status as a treating
While Dr. Wilson failed to provide an opinion as to Plaintiff’s functional limitations in
his consultative examination report, the ALJ gave no weight to the report, instead according
significant weight to the opinions of Dr. Warner, Dr. Cohn, and Dr. Saha, Plaintiff’s treating
physician. Therefore, to the extent that the ALJ did rely on Dr. Wilson’s evaluation to support
his determination, the Court concludes that such an error was harmless.
The Court similarly finds no error in the ALJ’s election to forego an additional
consultative examination based on the receipt of additional medical records from Dr. Saha. As
discussed supra, the findings of Drs. Warner and Cohn are not inconsistent with the findings
contained in Dr. Saha’s records, except that the lifting restrictions recommended by Dr. Warner
and ultimately adopted by the ALJ are more favorable than those recommended by Dr. Saha. AR
445, 483. Plaintiff points to no evidence that might prompt the imposition of more severe
physical limitations from a State agency physician or consultative examiner. Additionally, and
contrary to Plaintiff’s suggestion otherwise, the regulations do not “place an imperative on the
[Commissioner] to provide a consultative examiner with a full medical record[.]” Grant v.
Colvin, No. 3:14-cv-399, 2015 WL 4713662, at *13 (E.D. Tenn. Aug. 7, 2015). Plaintiff’s
position would allow all claimants to negate the opinions of examining and non-examining
sources as long as medical records were submitted documenting treating that took place after the
opinions from the these sources were rendered. See id. (“If the Court were to adopt the Plaintiff’s
argument, any consultative examiner should be summarily dismissed if their opinion was
submitted without full review of a plaintiff’s medical record or predated any treatment
records.”). The Court declines to adopt such a position, and thus rejects this assertion of error.
However, for reasons discussed below, the Court concludes that the RFC is not supported
by substantial evidence, thus necessitating remand of this case for additional consideration.
3. Plaintiff’s credibility.
Plaintiff’s next assertion of error involves the ALJ’s credibility determination. DE 15 at
9-10. Plaintiff contends the ALJ merely made a “conclusory statement” that his allegations had
been considered, in violation of SSR 96-7p. Id. at 10. 12 Despite this claim, Plaintiff proceeds to
argue that the ALJ improperly relied on Plaintiff’s admission that he regularly lifts 15-20 pounds
and answers he provided in a function report to discount his credibility. Id. at 11.
Pursuant to SSR 96-7p, the ALJ must first consider whether a claimant suffers from an
underlying medically determinable physical or mental impairment that could “reasonably be
expected to produce the [claimant’s] pain or other symptoms.” 1996 WL 374186, at *2 (July 2,
1996). After confirming the existence of such an impairment, the ALJ must “evaluate the
intensity, persistence, and limiting effects of the [claimant’s] symptoms to determine the extent
to which the symptoms limit the [claimant’s] ability to do basic work activities.” Id. In doing so,
the ALJ must make a finding as to the credibility of the claimant’s statements “based on a
consideration of the entire record.” Id. “[B]lanket assertions that the claimant is not believable
will not pass muster, nor will explanations as to credibility which are not consistent with the
entire record and the weight of the relevant evidence.” Rogers v. Comm’r of Soc. Sec., 486 F.3d
SSR 96-7p has been superseded by SSR 16-3p, which became effective on March 28, 2016. However,
because Plaintiff’s complaint was filed May 13, 2013, SSR 96-7p applies to the Court’s analysis of this
The Court first addresses Plaintiff’s claim that the ALJ’s credibility determination
consists of a “single, conclusory statement.” DE 15 at 10. “Conclusory” has been defined as
“consisting of or relating to a conclusion or assertion for which no supporting evidence is
offered.” Hess v. Colvin, No. 14-8103, 2016 WL 1170875, at *3 (C.D. Cal. Mar. 24, 2016)
(quoting Merriam-Webster's Collegiate Dictionary 239 (10th ed. 2001)). Therefore, if evidence
is provided in support of an assertion, the assertion is not conclusory. Here, Plaintiff contends
that the ALJ made a single, conclusory statement to discount his credibility, then paradoxically
argues that the ALJ discounted Plaintiff’s credibility based on “improper reasons,” and even
discusses those reasons in detail. DE 15 at 10-11. One can argue that the ALJ improperly made a
single, “conclusory” statement to discount Plaintiff’s credibility, or one can argue that the
reasons provided by the ALJ in support of the credibility determination are flawed. Both cannot
be true. The Court will therefore address the latter argument.
Plaintiff testified that he works at Demos’ restaurant five days per week, for “four or five
hours” per day. AR 30-34. Plaintiff claims that the ALJ erred by concluding that this “part-time”
position did not constitute substantial gainful activity (“SGA”) (AR 15), yet relying on his ability
to regularly lift 15-20 pounds at this job to discount his credibility. DE 15 at 10-11. The
regulations, however, state that consideration of part-time work by the ALJ is proper: “Even if
the work you have done was not substantial gainful activity, it may show that you are able to do
more work than you actually did.” 20 C.F.R. § 404.1571. Moreover, there is ample case law
from this circuit indicating an ALJ is entitled to consider work that does not constitute SGA. See
Norris v. Astrue, 5:10-cv-127, 2011 WL 588349, at *5 (E.D. Ky. Feb. 10, 2011), aff’d, 461 F.
App’x 433 (6th Cir. 2012) (“There is nothing inconsistent with finding that [the claimant’s] work
did not amount to substantial gainful activity, but nevertheless considering it relevant in
evaluating his credibility and RFC.”; Young v. Astrue, No. 2:12-cv-0050, 2013 WL 4456250, at
*14 (M.D. Tenn. Aug. 15, 2013) (“As for the claim that the ALJ improperly relied on plaintiff’s
part-time employment to discredit her credibility, it was entirely within the ALJ’s discretion to
consider plaintiff’s part-time job as a daily activity in making her credibility determination.”)
adopted by 2014 WL 3724844 (M.D. Tenn. July 25, 2014), aff’d, No. 14-6075 (6th Cir. Feb. 26,
2015); Fenner v. Comm’r of Soc. Sec., No. 3:12-cv-179, 2013 WL 2253573, at *6 (S.D. Ohio
May 22, 2013) (finding that ALJ appropriately considered the claimant’s employment history
after the alleged disability onset date, even if it involved unsuccessful attempts to gain
employment), adopted by 2013 WL 3168645 (S.D. Ohio June 20, 2013) (citing Mullis v. Bowen,
861 F.2d 991, 993 (6th Cir. 1988)); Raber v. Comm’r of Soc. Sec., No. 4:12-cv-97, 2013 WL
1284312, at *15 (N.D. Ohio Mar. 27, 2013) (finding that part-time jobs performed during the
alleged period of disability were relevant to credibility determination even though work was not
SGA); Tate v. Comm’r of Soc. Sec., No. 2:13-cv-11473, 2014 WL 4536929, at *22 (E.D. Mich.
Sept. 11, 2014) (finding that the ALJ properly considered plaintiff’s work history, including
work that was not SGA, in making credibility determination). The undersigned similarly
concludes that the ALJ properly considered Plaintiff’s part-time work as part of the credibility
Nevertheless, the Court agrees that the ALJ committed reversible error by failing to
consider additional evidence submitted after the administrative hearing regarding the frequency
of Plaintiff’s absence from his position at Demos’ restaurant. On November 16, 2011, counsel
for Plaintiff filed a “supplemental post hearing brief” 13 that included a letter from Plaintiff’s
supervisor, Glenn Randolph, indicating that Plaintiff either misses work or leaves early from
work “more than 8 times a month.” AR 229-30. 14 This level of absenteeism is consistent with
Plaintiff’s hearing testimony, in which he estimated that he misses approximately 12 days of
work per month. AR 49.
The omission of this evidence from the ALJ’s opinion is crucial for multiple reasons. For
one, it bolsters Plaintiff’s credibility and undermines the basis on which the ALJ discounted his
credibility. The ALJ referenced Plaintiff’s work at Demos’ multiple times when discussing the
credibility determination, including the following excerpt:
The claimant’s activities of daily living also include part-time work at a medium
exertional level ... The claimant admitted that he works up to five days a week,
and five hours at a time. The job includes lifting 15 to 20 pound objects and
placing them in an oven. The claimant also testified that he is expected to stand
the entire time. This type of lifting and standing falls within the range of the
residual functional capacity described above.
AR 18. Plaintiff specifically testified, however, that he can never work more than five hours per
day, and that he frequently has to leave early and get someone else to cover his shift due to back
pain. AR 33. He also confirmed that he misses at least two to three days of work per week. AR
49-50. This is consistent with Mr. Randolph’s statement that Plaintiff misses work at least eight
The ALJ advised Plaintiff during the hearing that the record would remain open for “ to 14 days”
after the November 7, 2011 hearing to allow time for the submission of additional evidence. AR 58.
The letter in question is a handwritten note from Mr. Randolph, who purports to be employed by
Demos’ restaurant, although neither Mr. Randolph’s position nor his relationship to Plaintiff is identified
in the letter. AR 229. Regardless, Defendant’s brief fails to raise an objection to the letter or even
acknowledge the letter. The undersigned is also mindful that it is not the Court’s role to weigh the
evidence contained in the record. See 42 U.S.C. § 405(g); see also Crum v. Sullivan, 921 F.2d 642, 644
(6th Cir. 1990) (“The [Commissioner], and not the court, is charged with the duty to weigh the evidence
times per month. See Hess v. Colvin, No. 3:12-cv-1907, 2014 WL 901144, at *10 (M.D. Pa. Mar.
7, 2014) (“The statement of an uninterested third-party employer tends to corroborate [the
claimant’s] testimony and bolsters her credibility.”) (citing Burnett v. Comm’r of Soc. Sec.
Admin., 220 F.3d 112, 122 (3d Cir. 2000)).
Additionally, Mr. Randolph’s letter and Plaintiff’s testimony regarding his regular
absence from work refutes the ALJ’s finding that Plaintiff can maintain full-time employment.
The vocational expert at the administrative hearing testified that absence from work more than
two days per month “usually results in unsatisfactory employment and likely termination.” AR
57. At step five of the evaluation process, the burden shifts to the Commissioner to prove that a
claimant’s RFC allows him to perform other SGA. Longworth, 402 F.3d at 595. Here, the ALJ
failed to acknowledge evidence consistent with Plaintiff’s testimony that he was forced to miss
work at least eight times per month. See 20 C.F.R. § 404.1529(c)(3) (stating that when
evaluating the intensity and persistence of a claimant’s symptoms, the Commissioner “will
consider all of the evidence presented, including information about [the claimant’s] prior work
record[.]”). The ALJ’s finding at step five that there are jobs that exist in significant numbers that
Plaintiff can perform is therefore not supported by substantial evidence.
While 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 Karger v. Comm’r of Soc. Sec., 414 F. App’x 739,
749 (6th Cir. 2011) (“[I]naccuracies, incomplete analysis and unresolved conflicts of evidence
can serve as a basis for remand.”). The ALJ in the instant matter completely ignored relevant
evidence regarding Plaintiff’s excessive absentee rate, despite the consistency of such evidence
with Plaintiff’s testimony. This is significant in light of the ALJ’s heavy reliance on Plaintiff’s
part-time work at Demos’ restaurant to discount his credibility, as well as the ALJ’s failure to
recognize Plaintiff’s work history as a factor that actually supports his credibility. See White v.
Comm’r of Soc. Sec., 312 F. App’x 779, 789 (6th Cir. 2009) (“[The claimant’s] extensive work
history and attempts to continue working despite his disability support his credibility, a factor not
even considered by the ALJ.”); see also SSR 96-7p, 1996 WL 374186, at *5 (July 2, 1996)
(noting the Commissioner’s duty in making a credibility determination to consider “[s]tatements
and reports from the individual ... and other persons about the individual’s ... prior work record
and efforts to work, daily activities, and other information concerning the individual’s symptoms
and how the symptoms affect the individual’s ability to work.”). The ALJ’s failure to even
acknowledge the employer’s statement or Plaintiff’s testimony regarding his absenteeism
prevents the Court from being able to determine whether substantial evidence supports the ALJ’s
conclusion that Plaintiff’s RFC would allow him to maintain full-time employment. The Court
therefore remands this case for consideration of Plaintiff’s excessive absenteeism and its impact
on Plaintiff’s ability to maintain full-time employment.
4. Plaintiff’s illiteracy.
Plaintiff finally claims that the ALJ failed to consider illiteracy in formulating the RFC.
DE 15 at 12. The Court declines to address this assertion of error, however, in light of the
undersigned’s decision to remand this case for an additional hearing and, therefore, the
formulation of a new RFC.
For the above stated reasons, Plaintiff’s motion for judgment on the administrative record
(DE 14) 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
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