Hale v. Social Security Administration et al

Filing 15

REPORT AND RECOMMENDATION: For the stated reasons, the undersigned Magistrate Judge respectfully recommends that Plaintiffs motion for judgment on the administrative record DE 10 be DENIED and the Commissioner's decision be AFFIRMED. ANY O BJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of service of this Report and Recommendation and must state with particularity the specific portions of this Report and Recommendation to w hich objection is made. re 10 First MOTION for Judgment on the Record filed by Elmer Wayne Hale. Signed by Magistrate Judge Barbara D. Holmes on 7/24/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ELMER WAYNE HALE
v.
NANCY A. BERRYHILL
Acting Commissioner of
Social Security 1

To:

)
)
)
)
)
)
)

No. 3:15-0443

The Honorable Waverly D. Crenshaw, Chief District Judge
REPORT AND RECOMMENDATION
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain

judicial review of the final decision of the Social Security Administration (“Commissioner”)
denying Plaintiff’s claim for a period of disability, 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. 10), to which Defendant has responded. Docket Entry
No. 11. Plaintiff has also filed a subsequent reply to Defendant’s response. Docket Entry No. 12.
Upon review of the administrative record as a whole and consideration of the parties’
filings, the undersigned Magistrate Judge respectfully recommends that Plaintiff’s motion for
judgment on the administrative record (Docket Entry No. 10) be DENIED.
I. INTRODUCTION
Plaintiff filed applications for a period of disability, DIB, and SSI on July 14, 2011. See
Transcript of the Administrative Record (Docket Entry No. 8) at 71-72. 2 He alleged a disability
1

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.

onset date of July 15, 2010. AR 71-72. Plaintiff alleged that she was unable to work because of
lower back pain, an inner ear tumor, and anxiety. AR 79.
Plaintiff’s applications were denied initially and upon reconsideration. AR 71-74.
Pursuant to his request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Elizabeth P. Neuhoff on July 25,
2013. AR 27. On November 1, 2013, the ALJ denied the claim. AR 9-11. On February 27, 2015,
the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (AR 1-3),
thereby making the ALJ’s decision the final decision of the Commissioner. This civil action was
thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).
II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on November 1, 2013. AR 9-11. 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 at least the date of this decision.
2. The claimant has not engaged in substantial gainful activity since July 15,
2009, the alleged onset date. (20 CFR 404.1571 et seq., and 416.971 et seq.).
***
3. The claimant has the following severe impairments: degenerative lumbar disk
disease, depressive disorder not otherwise specified and anxiety disorder not
otherwise specified (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).
2

The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding page number(s) as numbered in large black print on the bottom right
corner of each page. All other filings are hereinafter referenced by the abbreviation “DE” followed by the
corresponding docket entry number and page number(s) where appropriate.
2

***
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c). Specifically, he can lift and
carry 35 pounds occasionally, 20 pounds frequently, can stand up to six hours
total, can occasionally stoop and bend, and cannot work around workplace
hazards, such as unprotected heights. He can understand and remember simple
and detailed 1-4 step tasks, but cannot make independent decisions at an
executive level. He can sustain concentration and persistence during an eight
hour day with customary breaks, can interact with the public, supervisors, and
co-workers on a superficial level, but would relate better to things than to
people, and could set goals and adapt to infrequent change. No reading and
writing should be a regular part of the job duties, such as completing forms or
paperwork.
***
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
***
7. The claimant is a younger individual (20 CFR 404.1563 and 416.963).
8. The claimant has a high school education (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,
Appendix 2).
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 July 15, 2009, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
12. The claimant’s subjective complaints, including pain, have been evaluated as
required under the applicable regulations and rulings.
***
AR 14-21.
3

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.

4

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).
5

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 [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1). In determining a claimant’s RFC,
for purposes of the analysis required at steps four and five, the ALJ is required to consider the
combined effect of all the claimant’s impairments, mental and physical, exertional and
6

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).
7

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 found that Plaintiff met the first two steps, but determined at step three that Plaintiff
was not presumptively disabled because she did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff was unable to
perform past relevant work. At step five the ALJ found that Plaintiff could perform work as a
cleaner, kitchen helper, and hand packager, and thus concluded that Plaintiff has not been under
a disability since the alleged onset date of July 15, 2010. AR 12-21.
D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by (1) improperly omitting Plaintiff’s use of a cane
when formulating the RFC, and (2) failing to properly consider the opinion provided by
Dr. Richard Fishbein. DE 10-1 at 4-9. Plaintiff therefore requests that this case be reversed and
benefits awarded pursuant to sentence four of 42 U.S.C. § 405(g), or, alternatively, remanded
pursuant to sentence six of 42 U.S.C. § 405(g) for further consideration. Id. at 9-11.
Sentence four of 42 U.S.C. § 405(g) states the following:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing.
42 U.S.C. § 405(g), 1383(c)(3). Sentence six of 42 U.S.C. § 405(g) states the following:
8

The court may, on motion of the Commissioner of Social Security made for good
cause shown before the Commissioner files the Commissioner’s answer, remand
the case to the Commissioner of Social Security for further action by the
Commissioner of Social Security, and it may at any time order additional
evidence to be taken before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there is good cause
for the failure to incorporate such evidence into the record in a prior proceeding;
and the Commissioner of Social Security shall, after the case is remanded, and
after hearing such additional evidence if so ordered, modify or affirm the
Commissioner’s findings of fact or the Commissioner’s decision, or both, and
shall file with the court any such additional and modified findings of fact and
decision, and, in any case in which the Commissioner has not made a decision
fully favorable to the individual, a transcript of the additional record and
testimony upon which the Commissioner’s action in modifying or affirming was
based.
Id. “In cases where there is an adequate record, the [Commissioner’s] decision denying benefits
can be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is
overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery
v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues have been resolved and the record
adequately establishes a claimant’s entitlement to benefits. Faucher v. Secretary, 17 F.3d 171,
176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (1994). The Court addresses
each of Plaintiff’s assertions of error below.
1. RFC.
Plaintiff first argues that the ALJ committed reversible error by failing to consider his use
of a cane during the administrative hearing and in ultimately formulating the RFC. Plaintiff
asserts that the Vocational Expert (“VE”), who testified regarding Plaintiff’s ability to perform
work in spite of his impairments, “could have had a different answer related to job availability if
the need for a cane to ambulate was taken into account.” DE 10-1 at 5-6.

9

Plaintiff correctly notes that when posing a hypothetical to a VE regarding a claimant’s
ability to perform work in the local and national economies, the ALJ must include all of the
claimant’s relevant impairments. See Varley v. Sec’y of Health & Human Servs., 820 F.2d 777,
779 (6th Cir. 1987) (noting that “[s]ubstantial evidence may be produced through reliance on the
testimony of a vocational expert in response to a ‘hypothetical’ question, but only ‘if the question
accurately portrays [plaintiff’s] individual physical and mental impairments’”) (internal citation
omitted). However, in fashioning a hypothetical question for the VE, the ALJ “is required to
incorporate only those limitations accepted as credible by the finder of fact.” Bartyzel v. Comm’r
of Soc. Sec., 74 F. App’x 515, 524 (6th Cir. 2003) (quoting Casey v. Sec’y of Health & Human
Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)); see also Murphy v. Astrue, No. 2:11-cv-0114, 2013
WL 829316, at *10 (M.D. Tenn. Mar. 6, 2013), report and recommendation adopted sub nom.,
2013 WL 4501416 (M.D. Tenn. Aug. 22, 2013) (“If the ALJ does not find that [a cane] would be
medically necessary, then the ALJ is not required to pose a hypothetical to the VE.”).
The ALJ in the instant case was unequivocal in her rejection of the medical necessity of
Plaintiff’s cane:
In regards to the claimant’s use of a cane[:] it was noted that he admitted it was
not prescribed by a physician and aside from his use of a cane at the consultative
examination, there was no mention of the claimant appearing with a cane or
needing a cane. In fact, quite the opposite was noted at examinations, which found
he had a steady gait or normal gait and normal range of motion[.]
AR 20. The medical evidence clearly supports this analysis, as Plaintiff demonstrated a normal
gait during his last visit with Dr. Jeremy Cuzzourt in March of 2012 and a normal range of
motion during his last visit with Dr. Thomas Helton in April of 2013. AR 609, 637. Plaintiff also
stated during his hearing that no doctor had prescribed the cane for him. AR 45. As such, there
was no objective evidence on which the ALJ could have concluded that Plaintiff’s condition
10

necessitated the use of a cane, and thus no reason to incorporate such a limitation into any
hypothetical posed to the VE. See Carreon v. Massanari, 51 F. App’x 571, 575 (6th Cir. 2002)
(“Because the cane was not a necessary device for claimant’s use, it cannot be considered an
exertional limitation that reduced her ability to work.”); see also Murphy v. Astrue, No. 2:11-cv0114, 2013 WL 829316, at *10 (M.D. Tenn. Mar. 6, 2013), report and recommendation adopted
sub nom., 2013 WL 4501416 (M.D. Tenn. Aug. 22, 2013) (“If the ALJ does not find that such
device would be medically necessary, then the ALJ is not required to pose a hypothetical to the
VE.”).
Plaintiff does not dispute any of these findings, but instead points to an order form signed
by nurse practitioner Janis Fuqua on November 13, 2013 with the following notation: “Order:
Cane – Single point.” AR 838. 3 This is not, however, an indication from a provider that the use
of a cane is medically necessary and the order form contains no explanation as to why the cane
was required; an omission that precluded the ALJ from finding that such a device was a medical
necessity. See SSR 96-9p, 1996 WL 374185, *7 (July 2, 1996) (“To find that a hand-held
assistive device is medically required, there must be medical documentation establishing the
need for a hand-held assistive device to aid in walking or standing, and describing the
circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain
situations; distance and terrain; and any other relevant information).”).
Additionally, the Court notes that the cane was ordered for Plaintiff nearly four months
after his hearing and almost two weeks after the ALJ issued her opinion. AR 27, 838. Plaintiff
thus faults the ALJ for failing to consider a form indicating that a cane was ordered for Plaintiff
12 days after the ALJ determined that the cane was not medically necessary. Paradox
3

The form is electronically co-signed by Dr. Bradley Hill. AR 838.
11

notwithstanding, Plaintiff’s failure to produce any evidence regarding his use of a cane prior to
his hearing renders the order form untimely and therefore moot. See Mitchell v. Comm’r of Soc.
Sec., No. 13-cv-01969, 2014 WL 3738270, at *12 (N.D. Ohio July 29, 2014) (holding that
claimant’s failure to timely submit an opinion from a treating physician indicating that a cane
was medically necessary prevented the opinion from serving as medical documentation
establishing need for the cane).
The ALJ posed multiple hypotheticals to the VE that included limitations supported by
substantial evidence in the record. AR 60-67. Plaintiff’s procurement of a form indicating that a
cane was ordered for him 12 days after receiving an unfavorable decision from the ALJ does not
negate such evidence. This assertion of error is therefore rejected.
2. Dr. Fishbein’s opinion.
Plaintiff next argues that the ALJ improperly rejected the opinion of Dr. Richard
Fishbein, who completed a Medical Source Statement (“MSS”) pertaining to Plaintiff’s ability to
perform work-related activities on July 6, 2012. AR 626-31. 4 The restrictions that Dr. Fishbein
proposes in the MSS are allegedly based on an Independent Medical Evaluation (“IME”) of
Plaintiff that he performed in connection with a workers’ compensation claim on February 22,
2011, more than 18 months prior to his completion of the MSS. AR 829-31. As part of the IME,
Dr. Fishbein opined that Plaintiff would “retain 3% permanent impairment to the body as a
whole based on his lumbar strain[.]” AR 831. 5 This impairment rating was utilized in Plaintiff’s
4

Dr. Fishbein completed a second MSS on December 17, 2013, over one month after the ALJ’s
decision was issued, which, according to Plaintiff, necessitates remand of this case for additional
consideration. DE 10-1 at 8-9. The Court addresses this additional argument infra.
5

This impairment rating is derived from the American Medical Association’s Guide to the
Evaluation of Permanent Impairment (“AMA Guide”), which represents the “international standard for
impairment assessment” that was “designed to enhance the relevancy of impairment ratings, improve
12

subsequent workers’ compensation settlement, which was approved by a workers’ compensation
specialist on July 12, 2011. AR 162-64. 6 Plaintiff claims that the ALJ erroneously utilized this
permanent impairment rating to discount Dr. Fishbein’s MSS, noting that “[n]owhere in the
Code or Act will one find a mandate that if the AMA Guidelines calls for a high or low rating,
then the ALJ should correlate/use the AMA rating on a decision for disability.” DE 10-1 at 7-8.
It is true that disability percentage ratings used by the AMA in workers’ compensation
claims “are not strictly comparable to the specific functional limitations required in a Social
Security disability case[.]” Gray v. Astrue, 780 F. Supp. 2d 548, 554 (E.D. Ky. 2011). However,
Social Security Ruling (“SSR”) 06-03p, which was in effect at the time of the filing of Plaintiff’s
claim, 7 states that decisions from other agencies, such as those dealing with workers’
compensation claims, “and the evidence used to make these decisions, may provide insight into
the [claimant’s] mental and physical impairment(s) and show the degree of disability determined
by these agencies based on their rules.” 2006 WL 2329939, *7 (August 9, 2006). Indeed, the
ALJ is “required to evaluate all the evidence in the case record that may have a bearing on our
determination or decision of disability, including decisions by other governmental and
nongovernmental agencies.” Id. at *6; see also Begley v. Sullivan, 909 F.2d 1482 (table), 1990
WL 113557, at *2, n.1 (6th Cir. Aug. 8, 1990) (noting that in a case involving a claimant who
had received two permanent impairment ratings in connection with a work injury, the ALJ
internal consistency, promote greater precision, and standardize the rating process.” Hamilton v. Menard,
Inc., No. 3:10-CV-1997, 2012 WL 4483897, at *10, n.10 (N.D. Ohio Sept. 27, 2012) (internal citation
and quotations omitted.
6

Of note, the workers’ compensation settlement also indicates that Plaintiff received a zero
percent (0%) permanent impairment rating from his treating physician, Dr. Christopher Kauffman.
AR 163-64.
7

SSR 06-03p was subsequently rescinded effective March 27, 2017.
13

“properly considered the two opinions on percent of impairment as a pertinent piece of medical
evidence and not evidence that was outcome determinative”); Lear v. Colvin, No. 5:13-439KKC, 2014 WL 5796829, at *5 (E.D. Ky. Nov. 6, 2014) (“Although the AMA Guides do not
translate to any tangible restriction or functional impairment correlated with disability under the
Social Security Act, it is not an error for an ALJ to consider these findings.”).
Moreover, at least one sister court in this circuit has determined that a permanent
impairment rating of 13% assigned in a workers’ compensation claim “supports a finding of nondisability.” Peterson v. Colvin, No. 3:15-CV-00035-JMH, 2016 WL 5723595, at *6 (E.D. Ky.
Sept. 29, 2016). The Ninth Circuit has gone even further, holding that permanent impairment
ratings that are less than 30% lend support to a finding that a claimant is not disabled. See Waters
v. Gardner, 452 F.2d 855, 858 (9th Cir. 1971). Courts in other districts have similarly noted that
a 3% permanent impairment rating based on the AMA Guide provides support for concluding
that a claimant is not disabled. See Grimm v. Astrue, No. 12-5064, 2013 WL 2383647, at *6
(W.D. Ark. May 30, 2013). The Court finds these determinations persuasive.
Regardless, the relevant issue is whether substantial evidence supports the ALJ’s decision
to reject Dr. Fishbein’s opinion. Whitfield v. Astrue, No. 3:07-cv-1091, 2009 WL 1684489, at *2
(M.D. Tenn. June 15, 2009) (“[A]n ALJ may reject a consulting physician’s opinion based on
substantial evidence in the record.”) (citing Her v. Comm’r of Soc. Sec., 203 F.3d 388, 390 (6th
Cir. 1999)). The ALJ correctly noted that while Dr. Fishbein’s IME report stated only that
Plaintiff would be unable to perform work classified as “very heavy,” the MSS completed by
Dr. Fishbein precludes even sedentary work. AR 62, 627, 831; 20 C.F.R. § 404.1567.
Additionally, despite the loss of range of motion in the lumbar spine and tenderness to palpation
of the lumbar musculature demonstrated by Plaintiff upon examination, multiple imaging studies
14

of the lumbar spine were normal without any evidence of disc protrusion, spinal stenosis, or
foraminal narrowing. AR 486, 512-514. The ALJ also discussed Plaintiff’s treatment with his
treating physician, Dr. Christopher Kauffman, several months after Dr. Fishbein’s IME, during
which Plaintiff demonstrated a full range of motion of the lumbar and cervical spines, a full
range of motion of the hips, knees, and ankles, no tenderness in the lumbar spine, and no atrophy
in the lower extremities. AR 500-01. All of these findings weigh against the supportability and
consistency of Dr. Fishbein’s MSS, which are relevant factors in considering a non-treating
source’s opinion. See 20 C.F.R. § 404.1527(c)(3), (4).
The ALJ also provided a detailed discussion of the evidence documenting
Dr. Kauffman’s additional treatment with Plaintiff, which undermines the severity of
Dr. Fishbein’s opinion. AR 15-16. Such evidence includes Plaintiff’s demonstration of a normal
gait, mild tenderness over the lower back, a full range of motion and no tenderness over the
cervical spine, no atrophy, and a mildly positive straight leg test. AR 15. Imaging studies
demonstrated lumbar spondylosis without neurologic compression and a slight disk bulge at the
L5-S1 level. AR 15. Dr. Kauffman diagnosed Plaintiff with lumbar degenerative disk disease and
lower back pain, and determined that Plaintiff had no permanent impairment stemming from the
injury. AR 16. The Court also notes that Dr. Kauffman is an orthopedist, and thus a specialist
with respect to spinal conditions. See 20 C.F.R. § 404.1527(c)(5) (“We generally give more
weight to the opinion of a specialist about medical issues related to his or her area of
specialty [.]”).
Plaintiff argues that the ALJ unfairly discounted Dr. Fishbein’s opinion based on
Plaintiff’s inability to recall ever having seen him. DE 10-1 at 9. The Court agrees that a failure
to remember the name of a non-treating physician is not a valid basis on which to reject the
15

opinion of said physician. However, contrary to Plaintiff’s suggestion otherwise, the ALJ
provided other reasons for rejecting Dr. Fishbein’s opinion (AR 16), and there is substantial
evidence in the record to support the ALJ’s decision to instead favor the opinion of Plaintiff’s
treating physician, as discussed above. Therefore, to the extent that the ALJ erred by referencing
Plaintiff’s failure to recall Dr. Fishbein’s examination, the Court finds such error to be harmless.
This assertion of error is thus rejected.
3. Sentence six remand.
Plaintiff alternatively requests that his case be remanded for consideration of an
additional medical opinion provided by Dr. Fishbein, as well as evidence that a cane was
prescribed for Plaintiff following the ALJ’s determination. DE 10-1 at 9-10. This additional
evidence is found in Exhibits 27F and 28F. AR 838-50. Plaintiff claims that remand is necessary
because such evidence did not exist at the time of the ALJ’s decision and argues that “there is a
reasonable probability that a different result would have been reached if this evidence was
introduced during the original proceeding.” Id. at 10.
A reviewing court may only consider the evidence presented to the ALJ when
determining whether the ALJ’s decision is supported by substantial evidence. Bass v. McMahon,
499 F.3d 506, 512-13 (6th Cir. 2007). New evidence may only be considered after a sentence six
remand under 42 U.S.C. § 405(g), which is only available if the party requesting remand
demonstrates that the evidence in question is (1) new, (2) material, and (3) that there was good
cause for not submitting the evidence in the earlier proceeding. Id. at 513. Evidence is considered
“new” if it did not exist at the time of the administrative hearing, Foster v. Halter, 279 F.3d 348,
357 (6th Cir. 2001) (internal citation omitted), and “material” if it would “likely change the
Commissioner’s decision.” Bass, 499 F.3d at 513 (quoting Sizemore v. Sec’y of Health & Human
16

Servs., 865 F.2d 709, 711 (6th Cir. 1988)). “Good cause” exists if there is a reasonable
justification for failing to obtain the evidence before the administrative hearing. Foster, 279 F.3d
at 357.
Based on a review of the additional evidence, as well as consideration of the ALJ’s
treatment of the evidence in the administrative record, the Court finds that remand pursuant to
sentence six of 42 U.S.C. § 405(g) is not warranted. As a threshold matter, Plaintiff has not
demonstrated good cause for failing to introduce Dr. Fishbein’s second MSS in a timely fashion.
Plaintiff mistakenly assumes that good cause has been established simply because the opinion
was completed more than one month after the ALJ issued her decision. However, the fact that
this opinion was obtained well after entry of the ALJ’s decision, which was issued more than
three months after the administrative hearing, does not establish “good cause.” See Perkins v.
Apfel, 14 F. App’x 593, 598 (6th Cir. 2001) (“The mere fact that the evidence at issue was not
created until nine months after the ALJ’s decision ... does not establish good cause.”). Plaintiff
has the burden of providing evidence demonstrating the existence of a disability, Key v.
Callahan, 109 F.3d at 274, and he offers no valid reason for failing to procure the second MSS
prior to the hearing, which precludes satisfaction of the “good cause” requirement. Oliver v.
Sec’y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986). 8

8

Plaintiff also erroneously claims that the ALJ “entirely dismissed Dr. Fishbein’s opinion for
lack of an examination occurring when Dr. Fishbein completed the first [MSS],” and argues that the
second MSS was “completed in conjunction with a physical examination of [Plaintiff].” DE 10-1 at 1011. In addition to the substantial evidence cited by ALJ in rejecting Dr. Fishbein’s opinion, discussed
above, the second MSS submitted by Dr. Fishbein includes no indication that he actually examined
Plaintiff. Regardless, Plaintiff’s failure to establish good cause for the untimely submission of this MSS
prevents the Court from recommending remand pursuant to sentence six of 42 U.S.C. § 405(g).
17

Additionally, a form indicating that nurse practitioner Janis Fuqua ordered a cane for
Plaintiff almost four months after the administrative hearing does not establish that such
evidence is “material.” As previously discussed, in order to establish that a cane is medically
required, “there must be medical documentation establishing the need for a hand-held assistive
device to aid in walking or standing, and describing the circumstances for which it is needed.”
SSR 96-9p, 1996 WL 374185, *7 (July 2, 1996) (emphasis added). Ms. Fuqua’s order form
provides no such explanation, thus making it “unlikely that this new evidence would change the
Commissioner’s decision.” Rubin v. Comm’r of Soc. Sec., No. 09-11446, 2010 WL 5114016, at
*4 (E.D. Mich. Sept. 8, 2010), report and recommendation adopted, 2010 WL 5100841 (E.D.
Mich. Dec. 9, 2010).
Plaintiff’s additional argument that remand is necessary for consideration of records
regarding his alleged strokes is similarly unavailing. A court may order the Commissioner to
consider additional evidence pursuant to sentence six if “a party presents material evidence to the
court that was not previously available.” Faucher, 17 F.3d at 175. No such evidence has been
presented to the Court because Plaintiff is not in possession of these additional records. DE 10-1
at 10. Therefore, Plaintiff does not present any material evidence of a functional limitation
caused by an alleged stroke and his promise to “submit these records once received and when
granted permission” (id.) provides no basis on which the undersigned may grant a sentence six
remand. Therefore, the Court declines to recommend remand under pursuant to sentence six.

18

V. RECOMMENDATION
For the above stated reasons, the undersigned Magistrate Judge respectfully recommends
that Plaintiff’s motion for judgment on the administrative record (DE 10) be DENIED and the
Commissioner’s decision be AFFIRMED.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state
with particularity the specific portions of this Report and Recommendation to which objection is
made. Failure to file written objections within the specified time can be deemed a waiver of the
right to appeal the District Court’s Order regarding the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
Respectfully submitted,

__________________________
BARBARA D. HOLMES
United States Magistrate Judge

19