Manners v. Social Security Administration
REPORT AND RECOMMENDATION: In light of the foregoing, the undersigned RECOMMENDS that the Motion for Judgment (Doc. No. 14) be DENIED, that the decision of the Commissioner be AFFIRMED, and that final judgment be entered in favor of the Commissioner pursuant to Sentence 4 of 42 U.S.C. § 405(g). Signed by Magistrate Judge Norah McCann King on 8/3/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
CYNTHIA K. MANNERS,
Case No. 3:16-cv-00010
JUDGE ALETA A. TRAUGER
Magistrate Judge King
SOCIAL SECURITY ADMINISTRATION,
The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C. §§
405(g), 1383 for review of a final decision of the Commissioner of
security income. This matter is before the Court on Plaintiff’s Motion
for Judgment on the Administrative Record (Doc. No. 14)(“Motion for
Record (Doc. No. 16)(“Response”), Plaintiff’s Reply (Doc. No. 17), and
the administrative record (Doc. No. 10). 1 For the following reasons,
the undersigned RECOMMENDS that the Motion for Judgment (Doc. 14) be
DENIED, that the decision of the Commissioner be AFFIRMED, and that
final judgment be entered in favor of the Commissioner pursuant to
Sentence 4 of 42 U.S.C. § 405(g).
Citations to pages in the Administrative Record will appear as “Tr. __.”
Plaintiff filed this – her second – application for benefits in
April 2012, alleging that she has been disabled since May 4, 2004, by
reconsideration and Plaintiff requested a de novo hearing before an
administrative law judge (“ALJ”).
An administrative hearing was held on April 10, 2014. Plaintiff,
represented by counsel, testified, as did vocational expert Rebecca G.
Williams. Tr. 32-55. In a decision dated June 11, 2014, the ALJ held
Security Act from the date of her application through the date of the
administrative decision. Tr. 12-25. That decision became the final
Council declined review on November 3, 2015.
jurisdiction over the matter. 42 U.S.C. § 405(g).
The Findings and Conclusions of the ALJ
In his decision, the ALJ made the following findings of fact and
conclusions of law:
The claimant has not engaged in
application date (20 CFR 41
6.971 et seq.).
The claimant has the following severe impairments:
with bilateral release, degenerative disc disease,
diabetes mellitus, obesity, mild and nondisplaced tear
of posterior horn in left knee, depressive disorder not
and adjustment disorder with
moderate depressed mood (20 CFR 416.920(c)).
T he 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
416.920(d), 416.925 and 416.926).
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 416.967(b) except that she can
occasionally balance, stoop, kneel, crouch, crawl, and
climb stairs. She can never climb ladders, ropes, or
scaffolds. She can have no concentrated exposure to
vibration. As for mental limitations, she can perform
a job that has simple, routine and repetitive tasks.
She can tolerate infrequent workplace changes and can
have only occasional contact with the public. She can
frequently handle and grasp bilaterally.
The claimant is unable to
relevant work (20 CFR 416.965).
The claimant was born on March 1 1965
years old, which is defined as a younger
age 18-49, on the date the application was
claimant subsequently changed age category
approaching advanced age (20 CFR 416.963).
and was 47
The claimant has a limited education and is able to
communicate in English (20 CFR 416.964).
Transferability of job skills is not an issue
because the claimant does not have past relevant work
(20 CFR 416.968).
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 416.969
The claimant has not been under a disability, as
defined in the Social Security Act, since April 20, 2012, the
date the application was filed (20 CFR 416.920(g)).
(Tr. 14, 16, 23-24).
Summary of Relevant Evidence
In March 2010, Plaintiff was consultatively examined by Donita
Keown, M.D. Plaintiff’s primary complaint at that time was carpal
bilateral carpal tunnel release in 2002. Tr. 316. Clinical findings
included negative straight leg raising, negative neurological exam,
and unremarkable gait and station; grip strength was intact. Tr. 318.
etiology; diabetes mellitus, type 2, well controlled; hypertension;
asthma; chronic low back pain attributable to degenerative disease;
chronic headache pain; and GERD. Tr. 318-19. According to Dr. Keown,
Plaintiff could sit, and stand or walk, for 8 hours in an 8-hour
workday, and could lift up to 40 pounds occasionally and up to 25
pounds frequently. Tr. 319.
In July 2010, Juan Stacy Dinkins, D.O., treated Plaintiff for
complaints of increased discomfort in the lower lumbar spine with
paresthesias radiating into the lower extremity. On examination, Dr.
Dinkins noted grip strength of 5/5, positive straight leg raising,
equal and symmetric reflexes, paresthesia in the lower extremities
subsequent nerve conduction study was within normal limits and “[t]he
likelihood of a right L5/S1 radiculopathy or proximal neuropathy [was]
low.” Tr. 363. Dr. Dinkins also noted difficulty with heel and toe
walking. Tr. 365. X-rays of the lumbar spine showed degenerative disk
arthropathy. There was no appreciable spondylolisthesis. Tr. 368. Dr.
hypertension, asthma, GERD, degenerative joint disease, osteoarthrosis
degeneration, stenosis of the lumbar spine, and bursitis of the hip.
tolerated. Tr.365. An MRI conducted in October 2010 revealed mild
degenerative disk disease of the lumbar spine with mild disk space and
bilateral foraminal stenosis. Tr. 512, 514. A November 2010 MRI of the
left knee revealed degenerative joint disease with a lateral meniscus
tear. Tr. 380, 508, 510. During a follow-up office visit with Dr.
clinical examination, straight leg raising was negative and reflexes
walking. Grip strength was 5/5. Id.
reflexes, and grip strength of 5/5. Tr. 508. X-rays of the lumbar
spine and left hip taken following a fall in October 2011 were normal.
Tr. 501, 502. X-rays of the thoracic spine show mild dextroconvex
curvature. Tr. 503.
Julie A. Perrigin, M.D., who has been Plaintiff’s primary care
tunnel release, GERD, and headaches. Tr. 468, 470. Findings during a
September 2011 office visit included a normal gait and stance. Tr.
In June 2012, Dr. Keown consultatively examined Plaintiff once
again in connection with her disability claim and based on complaints
of carpal tunnel syndrome, diabetes mellitus, hypertension, asthma,
and high cholesterol. Tr. 456-57. On clinical examination, Dr. Keown
reported 5/5 motor strength, on best effort, and unremarkable gait and
station. According to Dr. Keown, Plaintiff could sit, and stand or
carrying without restriction as tolerated. Tr. 458.
disability claim, that she has provided chronic pain management for
conditions have resulted in depression and anxiety) and hypertension,
providers, including “long standing disability from bilateral carpal
tunnel.” Id. Dr. Perrigin stated:
In review of the previous doctors’ assessments and in her
present health condition with limitations in financial
stability, I feel that Ms. Manners has a strong case for
long term disability.
In February 2010, Dawn M. Brandau, Ph.D., consultatively examined
Plaintiff at the request of the state agency. Plaintiff reported no
mental health treatment other than psychotropic medications prescribed
Plaintiff was oriented. Dr. Brandau noted a mild impairment in short
term memory, and moderate impairment in Plaintiff’s ability to sustain
concentration and in long term and remote memory. Tr. 314. There was a
mild impairment in social relating and in her ability to adapt to
change. Id. Dr. Brandau diagnosed a depressive disorder, nos, and
placed Plaintiff’s global assessment of functioning (“GAF”) at 65. Tr.
In November 2010, Mark W. Petro, Ph.D., performed a consultative
examination of Plaintiff on referral by the state agency. Dr. Petro
remission; he placed Plaintiff’s GAF at 54. Tr. 377. According to Dr.
Petro, Plaintiff was mildly-to-moderately impaired in her ability to
ability to exhibit sustained concentration and persistence for making
complex decisions, and in her ability to persist without interruptions
from psychological symptoms within the work setting. Tr. 377-78. She
was mildly impaired in her ability to interact with the general public
and co-workers, and in her ability to respond appropriately to changes
in the work setting. Tr. 378.
Plaintiff at the request of the state agency. On clinical examination,
Plaintiff was oriented; she was depressed in mood and her affect was
moderate depressed mood. Tr. 453. According to Dr. Brown, Plaintiff is
moderately impaired in her ability to understand and remember simple
concentration and persistence, in her ability to interact with the
supervisors, and in her ability to respond appropriately to changes in
the work setting. Tr. 453-54. He placed Plaintiff’s GAF at 55 to 60.
Tr. 455. 2
Plaintiff asserts the following claims, repeated here verbatim:
1. The ALJ erred by not giving proper weight to the opinion
of the Plaintiff’s treating physician as required by
statute, caselaw, and applicable rulings (SSR 96-2p).
The administrative record also includes evaluations of the medical records
and assessments of Plaintiff’s RFC by state agency physicians and
2. The ALJ erred by failing to follow the requirements of
Dennard and Drummond.
3. The ALJ erred by not giving proper consideration to the
Plaintiff’s functional limitations as the result of her
obesity, according to SSR 02-1P.
4. The ALJ erred by failing
Plaintiff’s GAF score.
5. The ALJ erred by failing to include a function-byfunction assessment in the RFC assessment as required by
Memorandum in Support (Doc. No. 15, PageID# 644-52). Plaintiff does
challenge the vocational evidence.
Standard of Review
Commissioner’s decision is limited to determining whether the findings
of the ALJ are supported by substantial evidence and employed the
proper legal standards.
Richardson v. Perales, 402 U.S. 389 (1971);
Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)(internal quotation
marks and citation omitted).
Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th
Cir. 2009); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.
2003). This Court does not try the case de novo, nor does it resolve
McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court
must examine the administrative record as a whole.
Kirk v. Sec’y of
Health and Human Services, 667 F.2d 524, 536 (6th Cir. 1982).
Commissioner's decision is supported by substantial evidence, it must
be affirmed even if this Court would decide the matter differently,
Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir.
1990)(citing Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.
1983)), and even if substantial evidence also supports the opposite
Longworth v. Commissioner Social Security Administration,
402 F.3d 591, 595 (6th Cir. 2005)(citing Warner v. Comm’r of Soc. Sec.,
375 F.3d 387, 390 (6th Cir. 2004)).
1. Opinion of Treating Physician
Plaintiff complains that the ALJ failed to properly evaluate the
July 2013 opinion of Dr. Perrigin in which the doctor opined that,
based on “previous doctors’ assessments and in [Plaintiff’s] present
health condition with limitations in financial stability,” Plaintiff
“has a strong case for” disability. Tr. 518. The opinion of a treating
physician must be accorded controlling weight if it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques”
and not “inconsistent with the other substantial evidence in [the]
20 C.F.R. § 416.927(c)(2).
If the ALJ finds that
either of these criteria have not been met, he is then required to
apply the following factors in determining the weight to be given a
relationship and the frequency of examination, the nature and extent
specialization of the treating source. ...”
Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Wilson v. Comm’r of Soc.
In this regard, the ALJ is
Commissioner must provide “good reasons” for discounting the opinion
of a treating source, and those reasons must both enjoy support in the
evidence of record and be sufficiently specific to make clear the
weight given to the opinion and the reasons for that weight.
v. Comm’r of Soc. Sec, 710 F.3d 365, 376 (6th Cir. 2013); Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007)(citing Soc. Sec.
Rul. 96-2p, 1996 WL 374188, at *5). However, a formulaic recitation of
factors is not required.
See Friend v. Comm’r of Soc. Sec., 375 F.
App’x 543, 551 (6th Cir. 2010) (“If the ALJ’s opinion permits the
claimant and a reviewing court a clear understanding of the reasons
for the weight given a treating physician’s opinion, strict compliance
with the rule may sometimes be excused.”).
In the case presently before the Court, the ALJ recognized that
Dr. Perrigin had treated Plaintiff for a number of years, Tr. 18, and
accurately summarized Dr. Perrigin’s treatment of Plaintiff, Tr. 19.
However, Dr. Perrigin’s opinion was “not given significant weight” by
First, Dr. Perrigin’s letter did not provide a function-byfunction analysis and offers an opinion on an issue
reserved to the Commissioner. Second, Dr. Perrigin’s
opinion letter is inconsistent with the undersigned’s
review of the claimant’s treatment records, which generally
show no significant findings. For example, while Dr.
Perrigin mentions the claimant’s carpal tunnel syndrome in
the letter, there are no current carpal tunnel syndrome
issues raised in the underlying treatment records. Lastly,
the medical evidence of record mentions the claimant’s
menstrual bleeding issues, but she underwent surgery for
this problem. As a result, the undersigned does not find
anything in the medical evidence to suggest that her
menstrual bleeding is an ongoing or disabling problem.
Tr. 23 (citations to the record omitted).
An opinion that a claimant is unable to work “is tantamount to a
determination.” Sims v. Comm’r of Soc. Sec., 406 F. App’x 977, 980 n.1
(6th Cir. 2011). See also Payne v. Comm’r of Soc. Sec., 402 F. App’x
109, 112 (6th Cir. 2010)(“The applicable regulations provide that a
statement by a medical source that the claimant is ‘unable to work’ is
not a ‘medical opinion’[;] rather, it is an opinion on an ‘issue
finding that [is] dispositive of a case, i.e., that would direct the
Further, a fair reading of Dr. Perrigin’s opinion supports the
ALJ’s observation that her opinion was based, at least in part, on the
the earlier diagnosis by other providers of carpel tunnel syndrome, a
In short, The ALJ correctly applied the standards of the treating
physician rule to his evaluation of Dr. Perrigin’s opinion. The ALJ
gave good reasons for that evaluation, and that evaluation enjoys
Court finds no error with the Commissioner’s decision to that extent.
2. Effect of Prior Determination
security income, which was denied following an administrative hearing
degenerative disc disease and major depression.” Tr. 61. The prior ALJ
found that these severe impairments left Plaintiff with the RFC for
a limited range of light work: (lift/carry 20 pounds
occasionally and 10 pound frequently; stand and walk for
six hours in an eight-hour workday; and sit for six hours
activities); no lifting with either upper extremity of any
weight greater than 5 pounds repetitively and 10 pounds
maximally. She is to avoid hand-intensive work such as
pushing, pulling, and/or manipulating heavy objects with
the upper extremities, as well as the use of vibrating or
percussive tools and torque motion with the hands and
wrists; and concerning mental limitations, the claimant can
understand, remember and carry out only short and simple
instructions; and have occasional contact with the public.
Tr. 61. The current ALJ also found that Plaintiff has an RFC for a
limited range of light work, except that the current ALJ eliminated
the restriction on Plaintiff’s use of her hands. Tr. 16. Observing
that the current ALJ found even more severe impairments than did the
prior ALJ, Plaintiff contends that the ALJ erred by finding a less
In Drummond v. Comm’r. of Soc. Sec., 126 F.3d 837, 840 (6th Cir.
1997), the United States Court of Appeals for the Sixth Circuit held
that, absent evidence of improvement in a claimant’s condition or
other changed circumstances, a subsequent ALJ is bound by the findings
of a previous ALJ.
See also Acquiescence Ruling 98-4(6). 3 See also
When adjudicating a subsequent disability claim with an
unadjudicated period arising under the same title of the Act as
the prior claim, adjudicators must adopt such a finding from the
final decision by an ALJ or the Appeals Council on the prior
claim in determining whether the claimant is disabled with
respect to the unadjudicated period unless there is new and
material evidence relating to such a finding or there has been a
Dennard v. Sec’y of Health & Human Servs., 907 F.2d 598 (6th Cir.
1990)(Applying estoppel theory to an earlier administrative finding
regarding a claimant’s ability to perform his past relevant work).
Thus, the ALJ in this case was required to adopt the February 6, 2007,
finding as to plaintiff’s RFC unless he determined that there was new
condition or that there was a change in circumstances.
The ALJ found that there was such evidence: “There was medical
improvement in the claimant’s carpal tunnel syndrome. . . .” Tr. 12.
For example, the treating notes show no complaints of
carpal tunnel syndrome for the last couple of years.
Carpal tunnel syndrome is not even listed as a current
problem in the most recent medical records.
evidence does mention the carpal tunnel release by history,
but there is never any mention of complaints of current
symptoms. In addition, Dr. Keown was the only doctor [who]
noted a reduced grip, but with encouragement, it increased
to 5/5. Apparently, the claimant did not give full effort
In fact, some 2010 records indicated that the
claimant displayed a grip strength of 5/5.
Tr. 22. That finding enjoys substantial support in the record and this
Court therefore concludes that the ALJ did not err in failing to adopt
in all respects the RFC found by a different ALJ in 2007.
Plaintiff complains that the ALJ
failed to properly consider
required to consider obesity at the second through the fifth steps of
the sequential evaluation of disability. SSR 02-1p, 2002 WL 34686281,
at *3 (Sept. 12, 2002). That ruling, however, “‘does not mandate a
change in the law, regulations or rulings affecting the finding
of the method for arriving at the finding.
63 Fed. Reg. at 29773; 1998 WL 274052.
particular mode of analysis,’” although it “directs an ALJ to consider
the claimant’s obesity, in combination with other impairments, at all
stages of the sequential evaluation.” Nejat v. Comm’r of Soc. Sec.,
359 F. App’x 574, 577 (6th Cir. 2009) (quoting Bledsoe v. Barnhart,
165 F. App’x 408, 411–12 (6th Cir. 2006)). An ALJ satisfies this
requirement so long as he credits “RFCs from physicians who explicitly
accounted for [the claimant’s] obesity.” Coldiron v. Comm’r of Soc.
Sec., 391 F. App’x 435, 443 (6th Cir. 2010); but see Shilo v. Comm’r
of Soc. Sec., 600 F. App’x
956, 959 (6th Cir. 2015) (holding that
capacity’” (quoting SSR 02-1P, 2002 WL 34686281, at *1)).
In the case presently before the Court, the ALJ included obesity
among Plaintiff’s severe impairments, Tr. 14, and expressly recognized
the mandate of SSR 02-1p, 2002 WL 34686281, Tr. 15. He considered
Plaintiff’s obesity in determining whether Plaintiff’s impairments met
or equaled a Listing, Tr. 15, as well as in determining Plaintiff’s
RFC, Tr. 21. In this regard, it is significant that Plaintiff does not
suggest greater limitations in her RFC than were found by the ALJ by
reason of her obesity. This Court concludes that the ALJ properly
considered Plaintiff’s obesity.
Plaintiff complains that the ALJ improperly reduced the severity
of her mental impairments because of her GAF score.
The GAF scale is a method of considering psychological,
social, and occupational function on a hypothetical
continuum of mental health. The GAF scale ranges from
0 to 100, with serious impairment in functioning at a score
of 50 or below. Scores between 51 and 60 represent moderate
symptoms or a moderate difficulty in social, occupational,
or school functioning, whereas scores between 41 and 50
represent serious symptoms or serious impairment in these
Norris v. Comm’r of Soc. Sec., No. 11-5424, 2012 WL 372986 (6th Cir.
Feb. 7, 2012). An ALJ is not bound by GAF scores. Although a GAF score
Commissioner of Social Security, 167 Fed. Appx. 496, 503 n. 7 (6th
Cir. 2006). “Rather, it allows a mental health professional to turn
medical signs and symptoms into a general assessment, understandable
by a lay person, of an individual's mental functioning.” Id. The Sixth
determination of a GAF score. See Rutter v. Commissioner of Soc. Sec.,
1996 WL 397424 at *2 (6th Cir. July 15, 1996). See Kornecky, 167 Fed.
Appx. at 511 (“We are not aware of any statutory, regulatory, or other
authority requiring the ALJ to put stock in a GAF score in the first
place”), citing Howard v. Commissioner of Social Security, 276 F.3d
235, 241 (6th Cir. 2002).
The ALJ in this case recognized that the record reflects GAF
scores ranging from 54 to 65, Tr. 20, which reflect moderate to mild
impairments, the ALJ relied primarily on the opinion of Dr. Brown, the
consultative psychologist who placed Plaintiff’s GAF at 54-60 and who
found Plaintiff to be moderately impaired. Tr. 20, 23. There is simply
no basis for Plaintiff’s contention that the ALJ evaluated Plaintiff’s
mental impairments solely by reason of a GAF score.
The ALJ determined that plaintiff has the RFC
to perform light work as defined in 20 CFR 416.967(b)
except that she can occasionally balance, stoop, kneel,
crouch, crawl, and climb stairs. She can never climb
She can have
concentrated exposure to vibration.
As for mental
limitations, she can perform a job that has simple,
occasional contact with the public. She can frequently
handle and grasp bilaterally.
Tr. 16. Plaintiff contends that the administrative law judge erred in
1996). SSR 96-8p requires that the RFC determination consider certain
lifting, carrying, pushing, and pulling.” Id., 1996 WL 374184, at *5.
The Commissioner’s regulations specify that a claimant’s RFC must take
into account the extent to which a claimant’s “ability to perform
certain physical demands of work activity, such as sitting, standing,
claimant’s ability to work. 20 C.F.R. § 416.945(b). However, “the ALJ
need only articulate how the evidence in the record supports the RFC
inconsistencies in the record.
Sec., 30 F. Appx. 542, 548 (6th Cir. 2002).
In evaluating the ALJ’s RFC determination in this case, it is
determination made by the prior ALJ in 2007. See Drummond, 126 F.3d
respects with that earlier RFC, and was reduced only to reflect the
intervening improvement in Plaintiff’s carpal tunnel condition. The
ALJ fully considered the evidence regarding that improvement and the
impact of that improvement on Plaintiff’s ability to engage in workrelated functions. The ALJ did not err in this regard.
In short, the undersigned concludes that the decision of the
Commissioner is supported by substantial evidence and employed in all
respects the proper legal standards.
In light of the foregoing, the undersigned RECOMMENDS that the
Motion for Judgment (Doc. No. 14) be DENIED, that the decision of the
Commissioner be AFFIRMED, and that final judgment be entered in favor
of the Commissioner pursuant to Sentence 4 of 42 U.S.C. § 405(g).
Procedure on Objections
If any party seeks review by the District Judge of this report
and recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the report and recommendation,
specifically designating the part thereof in question, as well as the
basis for the objection.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
Response to objections must be filed within fourteen (14) days
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object
to the report and recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.
See, e.g., Pfahler v.
Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007). Even when
timely objections are filed, appellate review of issues not raised in
those objections is waived.
Robert v. Tesson, 507 F.3d 981, 994 (6th
Cir. 2007). Filing only “vague, general, or conclusory objections does
not meet the requirement of specific objections and is tantamount to a
complete failure to object.” Drew v. Tessmer, 36 F. App’x 561, 561 (6th
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
August 3, 2017
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