Coggin v. Social Security Administration et al
MEMORANDUM OPINION OF THE COURT. Signed by Magistrate Judge Barbara D. Holmes on 9/7/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
LANNY ROSS COGGIN, 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 a period of disability and Disability Insurance Benefits (“DIB”), as
provided under Title II of the Social Security Act (“the Act”). The case is currently pending on
Plaintiff’s motion for judgment on the administrative record (Docket Entry No. 16), to which
Defendant has responded. Docket Entry No. 17. Plaintiff has also filed a subsequent reply to
Defendant’s response (Docket Entry No. 18), to which Defendant has filed a surreply. Docket
Entry No. 21. This action is before the undersigned for all further proceedings pursuant to the
consent of the parties and order of the District Judge in accordance with 28 U.S.C. § 636(c)
(Docket Entry Nos. 23-24).
Upon review of the administrative record as a whole and consideration of the parties’
filings, Plaintiff’s motion is DENIED and the decision of the Commissioner is AFFIRMED.
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 a period of disability and DIB on February 15, 2010. See
Transcript of the Administrative Record (Docket Entry No. 14) at 95. 2 He alleged a disability
onset date of August 15, 2008. AR 95. Plaintiff asserted that he was unable to work due to
neuropathy, degenerative disc disease, and other back problems. AR 102. 3
Plaintiff’s applications were denied initially and upon reconsideration AR 95-96.
Pursuant to his request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Michelle Thompson on February 22,
2012. AR 29. On March 9, 2012, the ALJ denied the claim. AR 15-17. On July 5, 2013, the
Appeals Council denied Plaintiff’s request for a review of the ALJ’s decision (AR 1-3), thereby
making the ALJ’s decision the final decision of the Commissioner. This civil action was
thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).
II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on April 23, 2012. AR 15. 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, 2013.
2. The claimant has not engaged in substantial gainful activity since August 15,
2008, the alleged onset date. (20 CFR 404.1571 et seq.).
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.
The Explanation of Benefits, accompanying the Notice of Disapproved Claim dated April 15,
2010, additionally found evidence of asthma and high cholesterol. AR 102.
3. The claimant has the following severe impairments: lumbosacral spondylosis,
without myelopathy; obstructive chronic bronchitis, without exacerbation, postlaminectomy syndrome, lumbar region; and neuropathy of the lower extremities
(20 CFR 404.1520(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 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to lift and/or carry 10 pounds
frequently and 20 pounds occasionally; stand, walk, and/or sit for up to six hours
each; occasionally climb ladders/ropes/scaffolds; and frequently climb
ramps/stairs, balance, stoop, kneel, crouch, and crawl.
6. The claimant is capable of performing past relevant work as a night club manager
and restaurant manager. This work does not require the performance of workrelated activaties precluded by the claimant’s residual functional capacity
(20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security
Act, from August 15, 2008, through the date of this decision (20 CFR
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
12-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, 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 four of the five-step process.
The ALJ found that Plaintiff met the first two steps, but determined 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 able to
perform past relevant work as a night club manager and restaurant manager, and thus concluded
that Plaintiff has not been under a disability since the alleged onset date of August 15, 2008.
D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by: (1) improperly evaluating Plaintiff’s impairments;
(2) failing to include a function-by-function assessment in the RFC assessment; (3) improperly
considering the opinions of Plaintiff’s treating physician; (4) improperly considering the
opinions of the consultative examiner and non-examining consultant; and (5) improperly
evaluating Plaintiff’s credibility. DE 16-1 at 1-2. Plaintiff therefore requests that this case be
reversed and benefits awarded, or, alternatively, remanded pursuant to sentence four of
42 U.S.C. § 405(g) for further consideration. Id. at 13.
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 addresses each of Plaintiff’s assertions of error below.
1. Evaluation of Plaintiff’s impairments.
Plaintiff contends that the ALJ failed to properly evaluate his impairments. Plaintiff notes
that an imaging study showed degenerative changes to his spine and that part of his finger has
been amputated. DE 16-1 at 6. Plaintiff contends that the ALJ failed to provide sufficient reasons
for finding that these impairments were not severe.
It is well-established that the diagnosis of a condition is not sufficient to establish
disability. See Jones v. Comm’r of Soc. Sec., No. 13-cv-14217, 2015 WL 1004681, at *8 (E.D.
Mich. Mar. 6, 2015) (“[T]he mere diagnosis of an impairment is not enough to show disability; a
claimant must also prove its severity and functional impact.”) (citing Foster, 853 F.2d at 489).
Plaintiff claims that the above conditions “were diagnosed and well-documented in the record”
(DE 16-1 at 7), but cites no evidence suggesting that these conditions caused functional
limitations beyond those delineated in the RFC. There is thus no basis on which to find that
Plaintiff suffers from a disabling condition. See Krakow v. Comm’r of Soc. Sec., No. 13-14388,
2015 WL 1301300, at *10 (E.D. Mich. Mar. 23, 2015) (“[S]imply because plaintiff suffers from
certain conditions or carries certain diagnoses does not equate to disability[.]”).
Moreover, even if Plaintiff had made an effort to establish that these conditions
represented severe impairments, the ALJ’s refusal to conclude that these conditions were severe
would not require reversal in light of the ALJ’s determination that Plaintiff did suffer from other
severe impairments. AR 20. Indeed, once an ALJ finds that at least one of the claimant’s alleged
impairments is severe, the claim survives the step two screening process, 20 C.F.R.
§ 404.1520(a)(4); Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008), and both severe and
non-severe impairments are to be considered by the ALJ in the remaining steps of the evaluation
process. 20 C.F.R. §§ 404.1523 and 404.1545(a)(2). Courts have repeatedly held that an ALJ
does not commit reversible error when the ALJ finds that some impairments are not severe, but
finds that other impairments are severe and proceeds with 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); Fisk v.
Astrue, 253 F. App’x 580, 583 (6th Cir. 2007).
Additionally, the Court notes that Plaintiff’s brief fails to cite any regulation or opinion to
support his assertion that the ALJ was required to “provide sufficient reasons” for not finding
each alleged impairment was severe. DE 16-1 at 7. The Sixth Circuit has instead held that an
ALJ “need not discuss every piece of evidence in the record for his decision to stand.” Thacker v.
Comm’r of Soc. Sec., 99 F. App’x 661, 664 (6th Cir. 2004). Accordingly, the Court finds no error
in the ALJ’s determination as to the severity of Plaintiff’s alleged impairments.
2. Function-by-function assessment in the RFC.
The next assertion of error involved the ALJ’s failure to include a function-by-function
analysis, as required by Social Security Ruling (“SSR”) 96-8p. DE 16-1 at 7-8. Plaintiff states
that the ALJ “failed to include substantial limitations in the RFC finding correlating to symptoms
and limitations which are well-documented in the record.” Id. at 9.
Plaintiff’s argument is unpersuasive. For one, Plaintiff points to no evidence to support
any functional limitations beyond those ascribed by the ALJ, instead speculating that an injury to
his finger “[c]ertainly ... would impose limitations on the use of his hand and finger.” DE 16-1 at
8. However, the fact that symptoms have been documented in the record does nothing to
establish the existence of accompanying limitations. See Higgs, 880 F.2d at 863 (“[D]isability is
determined by the functional limitations imposed by a condition, not the mere diagnosis of
it.”).Plaintiff has thus failed to carry his burden to demonstrate the presence of a disabling
condition. See Key v. Callahan, 109 F.3d at 274 (“Claimant has the ultimate burden of proving
the existence of a disability.”) (citing Richardson v. Heckler, 750 F.2d 506, 509 (6th Cir. 1984)).
Additionally, it is well-settled law that the ALJ is not required to explicitly describe a
“function-by-function evaluation” in the opinion. See Delgado v. Comm’r of Soc. Sec., 30 F.
App’x 542, 547 (6th Cir. 2002) (“Although a function-by-function analysis is desirable, SSR 968p does not require ALJs to produce such a detailed statement in writing.”) (internal citations
omitted). The ALJ must instead “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). Plaintiff fails to provide any evidence that the ALJ neglected this duty. The Court
therefore rejects this assertion of error.
3. The opinion of Dr. Scott Standard.
Plaintiff alleges that the ALJ additionally erred by failing to explicitly state the amount of
weight that was given to the opinion of Dr. Scott Standard, a surgeon who performed back
surgery on Plaintiff in October of 2008. DE 16-1 at 9; AR 319. Plaintiff also faults the ALJ for
failing to consider whether Plaintiff was eligible for a closed period of disability benefits
between August of 2008 and July of 2009 based on Dr. Standard’s records. DE 16-1 at 9.
Notably, Plaintiff does not argue that Dr. Standard is subject to the treating physician rule
contained in 20 C.F.R. § 404.1527(c)(2), which requires the ALJ to provide “good reasons” for
the weight assigned to the opinion of a treating physician. This is perhaps due to the fact that
Dr. Standard never provided a medical opinion regarding the severity of Plaintiff’s symptoms or
any resultant functional limitations, and instead simply drafted several “Work Statement” forms
that excused Plaintiff from work on several occasions following surgery in October of 2008. See
AR 308, 327-28, 331. Regardless, to the extent that Dr. Standard could be considered a treating
provider subject to the treating physician rule, Plaintiff has waived such an argument. See Kuhn
v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir. 2013) (“This court has consistently held that
arguments not raised in a party’s opening brief, as well as arguments adverted to in only a
perfunctory manner, are waived.”).
In light of the foregoing, the Court finds no error in the ALJ’s failure to explicitly
describe the weight assigned to Dr. Standard’s post-surgery “Work Statement” forms, as the ALJ
was under no obligation to do so. See Kornecky, 167 F. App’x at 507-08 (“While it might be
ideal for an ALJ to articulate his reasons for crediting or discrediting each medical opinion, it is
well settled that ... [a]n ALJ can consider all the evidence without directly addressing in his
written decision every piece of evidence submitted by a party.”) (quoting Loral Defense
Systems–Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)). Plaintiff cites no regulation or
case law holding that an ALJ is required to state the weight she has afforded to temporary postsurgery physical restrictions recommended by a surgeon.
Finally, the Court is unpersuaded by Plaintiff’s cursory argument that the ALJ should
have considered whether Plaintiff was entitled to a closed period of disability benefits. The Sixth
Circuit has held that while the Act does not provide for a “closed period of benefits,” such
benefits may be awarded to a claimant from the time the alleged disability commenced until such
time that the disability ceased, Myers v. Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972), but
only to a claimant who meets the 12-month durational requirement of 42 U.S.C. § 423(d)(1)(A).
Lang v. Sec’y of Health & Human Servs., 875 F.2d 865 (6th Cir. 1989) (citing Howse v. Heckler,
782 F.2d 626 (6th Cir. 1986)).
The records cited by Plaintiff do little to demonstrate the existence of a disabling
condition that could be expected to last continually for 12 months. See 42 U.S.C. § 423(d)(1)(A)
(disability defined as an “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12
months”). Plaintiff erroneously claims that Dr. Standard “kept [Plaintiff] off of work from
August of 2008 through at least July 15, 2009” (DE 16-1), when, in fact, the records indicate that
Dr. Standard opined that Plaintiff was unable to work on four different occasions for varying
degrees of time, none of which demonstrate a continuous period of twelve months or more.
In August of 2008, Dr. Standard recommended that Plaintiff remain “off work” from
August 18 until September 3, a period of approximately two weeks. AR 308. On January 16,
2009, Dr. Standard recommended that Plaintiff remain “off work” until February 17, 2009,
return to work with minor restrictions until approximately mid-March, then return to work with
no restrictions. AR 327. Despite having completed the work statement on January 16, 2009 that
covered the next two, on January 28, 2009, Dr. Standard stated that Plaintiff was “off work” due
to an “inability to lift or sit greater than 2 hours at a time.” AR 328. 4 On May 27, 2009,
The reason for and duration of this January 28, 2009 work statement is unclear, at best. As
noted, Dr. Standard had previously issued a work statement on January 16, 2009, covering until mid13
Dr. Standard stated that Plaintiff was “off work” from April 15 until July 15, 2009, but provided
no explanation for this opinion. AR 331. 5
Further, even if Dr. Standard was considered a treating physician for purposes of
considering entitlement to a closed period of benefits, an argument which Plaintiff does not raise,
only two of the four “Work Statement” forms cited by Plaintiff provide any clue as to what
limitations were actually caused by Plaintiff’s condition: Dr. Standard’s January 16, 2009
opinion that Plaintiff could work for six hours at a time, with a 15-minute break every two
hours, 6 and his January 28, 2009 opinion that Plaintiff was “off work” due to an “inability to lift
or sit greater than 2 hours at a time.” AR 327, 333. Such statements, however, were not
supported by any medical findings, thus diminishing their significance to the ALJ’s analysis. See
Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 441 (6th Cir. 2010) (“[T]he ALJ is not
March of 2009. The January 28 work statement is thus duplicative in any respect. The January 28 work
statement also refers to the reason for Plaintiff being off work as “secondary to inability to lift or sit
greater than 2 hours at a time” (emphasis added), but does not specify the primary reference.
Additionally, the January 28 work statement does not specify the period of time for which Plaintiff was
restricted from returning to work. The most logical conclusion is that the January 28, 2009 work
statement was intended to supplement the January 16, 2009 work statement to provide a secondary reason
for the work restriction until mid-March of 2009 based on Plaintiff’s “inability to lift or sit greater than
2 hours at a time.”
The Court is unable to discern from the records Plaintiff’s work status between mid-March of
2009, when he was supposed to return to work according to the January 16 work statement, and April 15,
2009, when he was off work per the May 27, 2007 work statement. During that time, Plaintiff missed two
scheduled appointments with Dr. Standard, one on March 27, 2009 (AR 329) and one on April 22, 2009
(AR 330). Apparently, during Plaintiff’s next visit with Dr. Standard on May 27, 2009, Plaintiff received
the work statement of that same date to be off work from April 15, 2009 through July 15, 2009. AR 331.
This recommended restriction of a “15-minute break every two hours,” matches the RFC
ultimately ascribed by the ALJ (AR 21), based on the Sixth Circuit’s observation that “breaks every two
hours are normal and assumed in most jobs.” Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 730 (6th
bound by conclusory statements of doctors, particularly where they are unsupported by detailed
objective criteria and documentation.”).
Moreover, a note from a treating physician that a claimant cannot return to work until a
specific date “is not an opinion of a medical condition, but rather is an opinion of disability that
is reserved for the ALJ.” Dailey v. Colvin, No. 1:13-1755, 2014 WL 2743204, at *6 (N.D. Ohio
June 17, 2014); see also Evers v. Astrue, No. 3:12-0118, 2013 WL 1305627, at *7 (E.D. Tenn.
Jan. 2, 2013), report and recommendation adopted, 2013 WL 1301777 (E.D. Tenn. Mar. 28,
2013) (note from treating physician stating that “[p]atient is being treated for low back pain, and
is currently unable to work” is not an opinion as to the nature and severity of an impairment
under 20 C.F.R. § 404.1527(c)(2)”). Further, Dr. Standard’s notes from subsequent visits with
Plaintiff in May and September of 2009 and accompanying x-rays highlight the improvement of
Plaintiff’s condition. See AR 333 (“[Plaintiff’s] x-rays ... look great.”), 335 (“His x-rays look
fine[.]”). 7 The ALJ clearly discussed these findings in the opinion. AR 22.
Finally, Dr. Standard’s records reveal that Plaintiff missed at least four different
appointments in 2009 (AR 329, 330, 334, 336), which suggests that Plaintiff’s symptoms were
not as debilitating as he alleges. See White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir.
2009) (noting that a “reasonable mind” might conclude that a lack of treatment indicates an
alleviation of symptoms) (citing Richardson, 402 U.S. at 401). During their final encounter,
which took place one month before an additional appointment that Plaintiff skipped (AR 336),
Dr. Standard noted that Plaintiff’s x-rays were normal and that his “healing process is good.”
AR 335. There is no indication Dr. Standard placed any work restrictions on Plaintiff and records
from Plaintiff’s treatment with Dr. Gary McDonald during approximately the same timeframe,
Although Plaintiff apparently still complained to Dr. Standard of pain and an inability to sit.
including records documenting treatment after his back surgery in October of 2008, suggest that
he was not suffering from back pain symptoms during several of these visits. See AR 267-70.
This includes a notation on January 5, 2009 that Plaintiff’s “[b]ack has done tremendously better
after [surgery].” AR 269. Therefore, to the extent that the ALJ erred by failing to consider
whether Dr. Standard’s “Work Statement” notes supported a finding that Plaintiff was entitled to
a closed period of disability benefits, the Court finds that such an omission was harmless.
4. The opinions of Drs. Huang and Allison.
Plaintiff claims that the ALJ committed reversible error by “failing to provide sufficient
reasons” for the weight assigned to the opinions of Dr. Lloyd Huang, a consultative examiner,
and Dr. Joe Allison, a non-examining medical consultant. DE 16-1 at 10. Plaintiff faults the ALJ
for according greater weight to the latter’s opinion since Dr. Allison did not examine Plaintiff
and rendered his opinion without the benefit of the entire record of evidence, including
additional records from St. Thomas Hospital. Id. at 9.
As part of his consultative examination, Dr. Huang opined that Plaintiff could
occasionally lift 20 pounds, frequently lift 10 pounds, and stand and walk for three to four hours
during an eight-hour workday. AR 341. The ALJ gave “less weight” to this opinion and provided
the following justification:
Dr. Huang’s opined limitations as to standing, walking, and sitting are
inconsistent not only with the medical evidence of record, but also with his own
objective findings during his examination of the claimant. Such limitations do not
adequately account for Dr. Huang’s mostly normal range of motion findings, as
well as normal strength findings. As such, Dr. Huang’s opinion is only partially
consistent with the totality of the evidence.
AR 22-23. Notwithstanding Plaintiff’s claim that these reasons are not “sufficient,” the Court
finds no error in the ALJ’s evaluation of the opinions provided by Drs. Huang and Allison.
In assessing the opinion of examining physicians, the ALJ must simply “explain the
weight given to [such] opinions[.]” Wilburn v. Astrue, No. 3:10-0008, 2010 WL 6052397, at *6
(E.D. Tenn. Sept. 13, 2010), report and recommendation adopted, 2011 WL 891022 (E.D. Tenn.
Mar. 11, 2011); see also 20 C.F.R. § 404.1527(e)(2)(ii) (“Unless a treating source’s opinion is
given controlling weight, the administrative law judge must explain in the decision the weight
given to the opinions of a State agency medical or psychological consultant[.]”). The ALJ
provided such an explanation, noting that Dr. Huang’s own findings revealed a normal range of
motion with respect to Plaintiff’s cervical spine, shoulders, elbows, wrists, hips, knees, and ankle
joints, as well as normal motor strength. AR 340. The ALJ also noted that Dr. Huang’s
restrictions as to standing, walking, and sitting were inconsistent with the other medical evidence
of record, which reveals no other opinion from a medical source recommending physical
restrictions as limiting as those proposed by Dr. Huang. Plaintiff claims that Dr. Huang’s opinion
“is not inconsistent with the record as a whole” (DE 16-1 at 10), but cites nothing to support this
tepid assertion. The ALJ’s decision to discount Dr. Huang’s opinion would therefore have been
reasonable even if Dr. Huang had been a treating physician. See Brown v. Soc. Sec. Admin.,
No. 3:14-1451, 2015 WL 5098715, at *5 (M.D. Tenn. Aug. 31, 2015), report and
recommendation adopted, 2015 WL 5559917 (M.D. Tenn. Sept. 18, 2015) (“[I]nconsistency
between a physician’s opinion and the treatment notes upon which that opinion is based, as well
as with the balance of the medical record, is sufficient reason to discount the weight of an
examining source.”) (citing Gant v. Comm’r of Soc. Sec., 372 F. App’x 582, 584 (6th Cir.
The Court similarly finds no error in the ALJ’s decision to accord more weight to the
opinion of Dr. Allison. Plaintiff notes that Dr. Allison rendered his opinion without reviewing
records documenting subsequent treatment at St. Thomas Hospital, yet the same can be said of
Dr. Huang, who completed his assessment four days before Dr. Allison’s opinion was issued.
AR 341, 350. Although there is case law suggesting that an ALJ should not favor the assessment
of a non-examining source without access to a complete record over the opinion of a treating
physician, see Blakley, 581 F.3d at 408-09, Plaintiff provides no support for his assertion that
Dr. Huang’s opinion outweighs Dr. Allison’s assessment when neither consultant had access to
the complete record. Cf. Robinson v. Comm’r of Soc. Sec. Admin., No. 5:14-0291, 2015 WL
1119751, at *11 (N.D. Ohio Mar. 11, 2015) (“An ALJ’s unsupported rejection of a treating
source and reliance on non-examining sources without full access to the record appeared to be
the ‘overriding danger’ that existed in Blakley, is not similarly present here.”) (emphasis added).
Dr. Allison assigned restrictions similar to those recommended by Dr. Huang, except for
his opinion that Plaintiff can stand, walk, and sit for an additional two to three hours per
workday. AR 343. The ALJ credited this opinion based on its consideration of the “mild-tomoderate” limitations in Plaintiff’s lumbar range of motion. AR 22. Plaintiff points to no
evidence demonstrating that such a judgment was unreasonable, nor does he explain in any way
how the additional records from St. Thomas Hospital impact the assigned RFC. See Vanarnam v.
Comm’r of Soc. Sec., No. 12-14397, 2014 WL 1328272, at *24 (E.D. Mich. Mar. 28, 2014)
(“Plaintiff fails to explain what evidence or records were not reviewed by [a non-examining
consultant], or, more importantly, how those records contained findings inconsistent with [the
non-examining consultant’s] opinion that plaintiff could perform a limited category of light
work. Accordingly, plaintiff has failed to show that the ALJ’s RFC assessment is not supported
by substantial evidence[.]”); see also Helm v. Comm’r of Soc. Sec. Admin., 405 F. App’x 997,
1002 (6th Cir. 2011) (“There is no categorical requirement that the non-treating source’s opinion
be based on a ‘complete’ or ‘more detailed and comprehensive’ case record. The opinion need
only be ‘supported by evidence in the case record.’”). 8 The Court thus finds that substantial
evidence supports the ALJ’s decision to accord greater weight to Dr. Allison’s opinion.
Plaintiff finally contends that the ALJ failed to properly evaluate his credibility in
violation of SSR 96-7p. DE 16-1 at 11-13. 9 Plaintiff contends the ALJ made a “conclusory
statement” regarding Plaintiff’s hearing testimony, and thus failed to “provide any concrete
reasons for finding the Plaintiff to not be credible.” Id. at 12. He further argues that the ALJ
committed reversible error by failing to explicitly identify the weight she accorded Plaintiff’s
As an initial matter, Plaintiff undermines his own assertion that the ALJ violated SSR 967p by merely providing a “conclusory statement” regarding the credibility determination, as he
then proceeds to acknowledge that the ALJ provided several reasons for discounting Plaintiff’s
The Court also rejects Plaintiff’s request for remand to consider Dr. Huang’s general statement
that “[p]erhaps, vocational rehabilitation or educational opportunities for sedentary work would be
helpful” (AR 341), as such a statement does not represent a medical opinion subject to consideration
under 20 C.F.R. § 404.1527. Cf. Rincon v. Comm’r of Soc. Sec., No. 14-12098, 2016 WL 922945, at *3
(E.D. Mich. Mar. 11, 2016) (“[The treating physician’s] statement regarding Plaintiff’s potential for long
term employment is prefaced with the qualifier ‘seems,’ suggesting that [the treating physician] in fact did
not reach a firm medical opinion on the subject.”); Everett v. Comm’r of Soc. Sec., No. 1:11-0219, 2012
WL 3731388, at *13 (S.D. Ohio Aug. 28, 2012), report and recommendation adopted, 2012 WL 4506293
(S.D. Ohio Oct. 1, 2012) (“[The treating physician’s] recommendation that plaintiff should live in a
dwelling without stairs because stairs would aggravate her foot and ankle arthritis and tendonitis does not
impose any functional limitations, it is not an opinion on the nature or severity of plaintiff’s impairment,
and it does not constitute evidence that plaintiff is unable to engage in substantial gainful activity.”).
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 September of 2013, SSR 96-7p applies to the
undersigned’s analysis of this claim. See Cameron v. Colvin, No. 1:15-cv-169, 2016 WL 4094884, at *2
(E.D. Tenn. Aug. 2, 2016) (“It is well-established that, absent explicit language to the contrary,
administrative rules do not apply retroactively.”) (internal citation omitted).
testimony, including normal physical examinations, consistently good range of motion, and
normal strength. AR 23. Because the ALJ relied on findings contained in the record to discount
Plaintiff’s credibility, Plaintiff’s argument that the ALJ provided only a “conclusory statement”
is unfounded. 10
Moreover, consideration of such objective findings is precisely the type of evaluation
mandated by SSR 96-7p. 11 See 1996 WL 374186, *3 (July 2, 1996) (“[T]he impact of the
symptoms on the individual’s ability to function must be considered along with the objective
medical and other evidence[.]”). Therefore, Plaintiff’s argument that the ALJ failed to provide
“concrete reasons” also fails. Cf. Shown v. Colvin, No. 3:15- 238, 2016 WL 1192675, at *8 (E.D.
Tenn. Mar. 28, 2016) (“[T]he Sixth Circuit has explained that an ALJ’s credibility determination
need not include an item-by-item analysis of all the factors identified in § 404.1529(c)(3).”)
(internal citations omitted).
Nevertheless, Plaintiff claims that the ALJ ignored findings from physical examinations
performed by Dr. Gary McDonald during five office visits between 2008 and 2011. DE 16-1 at
12-13. However, Plaintiff’s selective references to Dr. McDonald’s records do not render the
ALJ’s determination erroneous. For example, Plaintiff points to Dr. McDonald’s finding that his
feet were “absent vibratory sense distally over the toes” on January 5, 2009, although Plaintiff
Importantly, the ALJ found Plaintiff’s testimony “not fully credible” in light of these cited
reasons. AR 23 (emphasis added). She did not, as Plaintiff claims, find that Plaintiff was “not credible.”
DE 16-1 at 13.
The Court notes that Social Security Rulings such as SSR 96-7p “do not have the force and
effect of law, but are ‘binding on all components of the Social Security Administration’ and represent
‘precedent final opinions and orders and statements of policy and interpretations’ adopted by the
Commissioner.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 272, n.1 (6th Cir. 2010) (quoting
20 C.F.R. § 402.35(b)(1)). The requirement that an ALJ make a credibility determination is contained in
20 C.F.R. § 404.1529(c)(3).
additionally demonstrated normal motor strength in his feet, both proximally and distally.
AR 270. During a subsequent visit on May 26, 2009, Plaintiff demonstrated merely “diminished”
sensation in his feet, with normal motor strength in both feet (AR 267), and was asymptomatic in
his feet during his next visit on October 15, 2009. AR 265. This appears to fit with the ALJ’s
conclusion that Plaintiff’s allegations were not entirely consistent with the evidence of record.
Plaintiff also argues that the ALJ improperly discounted his testimony based on an office
note indicating that he was “markedly tender over [the] left lateral epicondyle” on March 14,
2008. DE 16-1 at 12-13; AR 277. However, this symptom was not present during a subsequent
visit just five days later (AR 275), nor was it noted during any other visit with Dr. McDonald.
Indeed, Plaintiff has not included disabling pain in his elbow as a physical condition that limits
his ability to work. AR 175. The Court thus finds it disingenuous that Plaintiff references
tenderness in the elbow, a symptom that he exhibited on a single visit five months prior to the
alleged onset date, to argue that the ALJ failed to fairly assess his credibility. Regardless, such
evidence does nothing to support Plaintiff’s assertion of error.
“While in theory we will not ‘disturb’ an ALJ’s credibility determination without a
‘compelling reason,’ in practice ALJ credibility findings have become essentially
“unchallengeable[.]” Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 476 (6th Cir. 2016)
(internal citations omitted). The ALJ’s determination must be affirmed as long as it is
“reasonable and supported by substantial evidence.” Id. (quoting Rogers, 486 F.3d at 249). The
ALJ identified several examples of inconsistency in the record that bolster her determination that
Plaintiff’s testimony was not entirely credible. The Court also reiterates that Plaintiff missed
numerous appointments with his treating physician (AR 329, 330, 334, 336), which is further
evidence that “may cast doubt on a claimant’s assertions of disabling pain.” Strong v. Soc. Sec.
Admin., 88 F. App’x 841, 846 (6th Cir. 2004) (internal citation omitted). Therefore, the Court
concludes that substantial evidence supports the ALJ’s credibility determination, and, based on
the foregoing analysis, affirms the decision of the Commissioner.
For the above stated reasons, Plaintiff’s motion for judgment on the administrative record
(DE 16) is DENIED. An appropriate Order will accompany this memorandum.
BARBARA D. HOLMES
United States Magistrate Judge
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