Goppert v. Social Security Administration

Filing 18

REPORT AND RECOMMENDATION re 11 MOTION for Judgment on the Record filed by Daryl Jon Goppert. Signed by Magistrate Judge Joe Brown on 1/23/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DARYL JON GOPPERT,

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Plaintiff,
v.
NANCY BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant.

No. 3:16-cv-02739
Chief Judge Crenshaw
Magistrate Judge Brown

To: The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge
REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff’s motion for judgment on the administrative record
(Docket Entry No. 11), to which Defendant Commissioner of Social Security (“Commissioner”)
filed a response (Docket Entry No. 16). Upon consideration of the parties’ filings and the transcript
of the administrative record (Docket Entry No. 9),2 and for the reasons given herein, the Magistrate
Judge RECOMMENDS that Plaintiff’s motion for judgment be GRANTED and that the decision
of the Commissioner be REVERSED.
I. PROCEDURAL HISTORY
Plaintiff, Daryl Jon Goppert, filed an application for Disability Insurance Benefits (“DIB”)
under Title II and an application for Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act on August 5, 2013, alleging disability onset as of August 1, 2008, due to panic

1

Nancy Berryhill became acting Commissioner for the Social Security Administration on
January 23, 2017, and is therefore substituted as Defendant. See Fed. R. Civ. P. 25(d).
2

Referenced hereinafter by page number(s) following the abbreviation “Tr.”

attacks, memory loss, depression, posttraumatic stress disorder (“PTSD”), anxiety and sleep
problems. (Tr. 16, 70-73, 174, 181). Plaintiff’s claim was denied at the initial level on November
6, 2013, and on reconsideration on January 30, 2014. (Tr. 16, 70-77, 88-98, 111, 120). Plaintiff
subsequently requested de novo review of his case by an administrative law judge (“ALJ”). (Tr.
126-27). The ALJ heard the case on May 27, 2015, when Plaintiff appeared with counsel and gave
testimony. (Tr. 16, 31-61). Testimony was also received by a vocational expert. (Tr. 61-67). At
the conclusion of the hearing, the ALJ referred Plaintiff to undergo a physical consultative
examination. (Tr. 67-68). On August 14, 2015, the ALJ issued a written decision finding Plaintiff
not disabled. (Tr. 13-26). That decision contains the following enumerated findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2008.

2.

The claimant has not engaged in substantial gainful activity since August 1,
2008, the alleged onset date (AOD) (20 CFR 404.1571 et seq., and 416.971
et seq.).

3.

The claimant has the following severe impairments: obesity; degenerative
disc disease (DDD); anxiety; and substance addiction disorders in remission
(20 CFR 404.1520(c) and 416.920(c).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1(20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c), i.e., the lifting and/or
carrying of 50 pounds occasionally and 20 pounds frequently; standing
and/or walking of 6 hours in an 8-hour workday; and sitting of 6 hours in an
8 hour workday, except never climb ladders, ropes, and scaffolds;
occasionally climb ramps and stairs; occasionally balance, stoop, kneel,
crouch, and crawl; he is able to complete simple, detailed, and multi-step
tasks, but not executive-level tasks; he is able to maintain concentration for
2 hours at a time with regularly scheduled breaks; no interaction with the
2

general public; occasional interaction with coworkers and supervisors; he can
tolerate gradual, infrequent workplace changes.
6.

The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).

7.

The claimant was 51years old (an individual closely approaching advanced
age) on the alleged disability onset date. The claimant subsequently changed
age category to advanced age (20 CFR 404.1563 and 416.963).

8.

The claimant has a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
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 August 1, 2008,through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

(Tr. 18, 19, 20-21, 25, 26).
On August 22, 2016, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision (Tr. 1-5), thereby rendering that 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. REVIEW OF THE RECORD
The following summary of the medical record is taken from the ALJ’s decision:
In March 2015, it was reported that a 2013 x-ray showed mild to moderate lumbar
degenerative changes with spurring. The claimant complained of back pain without
radiation and stated that an increased dose of medication helped. He had normal
movement in all extremities. Straight leg raising was negative bilaterally. In
3

October, his back pain flared up, reportedly once a month for 5 days. The medical
evidence also revealed that he had been walking 20 minutes, 3 times a day for
exercise. (Exhibit 5F, pp 1, 2, 6, 7, 10, 45, 46)
In June 2015, William Robinson II, M.D., performed a CE, which showed all ranges
of motion were normal, except for dorsolumbar motion. Straight leg raise test was
positive to 60 degrees on the right and 70 degrees on the left. His upper extremity
pinch, grip strength, and fine and gross motor manipulation were normal. Upper and
lower extremities had full strength (5/5). There was no muscle spasm in the spine and
no sensory loss. Due to back pain, he performed heel-to-toe walk with some
difficulty. Even so, Dr. Robinson assessed him able to lift 50 pounds occasionally
and 20 pounds continuously. This medical opinion strongly supports the RFC
finding that he is able to perform lifting and/or carrying of weights consistent with
medium work activity (50 pounds occasionally and 25 pounds frequently). (Exhibit
6F)
Regarding obesity, in March 2015, the claimant weighed 267 pounds and was five
feet, eleven inches tall. (Exhibit 5F) In June 2015, weight was 262 pounds. (Exhibit
6F, p 2) The medical evidence shows that in 2012, he ambulated independently.
(Exhibit 4F, p 11) In 2014, lumbar range of motion (ROM) was normal and straight
leg raising (SLR) was negative. He arose from a chair “okay,”' but appeared to walk
with some stiffness. (Exhibit 5F) In March 2015, he had normal movement in all
extremities and bilateral SLR tests were again negative. (Exhibit 5F) In 2015, he
used no assistive walking device. Dr. Robinson reported that, “obesity does not
affect very much” and that his standard walking was fairly normal. (Exhibit 6F) Dr.
Robinson’s clinical findings support a finding that the claimant could perform lifting
and/or carrying of weights consistent with medium work activity (50 pounds
occasionally and 25 pounds frequently); that he could stand and/or walk for 6 hours
in an 8-hour workday; and that he could sit for at least 6 hours in an 8-hour workday.
Furthermore, the factors listed in Social Security Ruling (SSR) 02-lp are considered,
including the effects of obesity upon his ability to perform routine movement and the
necessary physical activity of work and it is concluded that obesity does not prevent
him from working. (For additional evidence as to how the claimant performs daily
routine movement, see the listed daily activities in the body of this decision at pages
4 and 5.)
Regarding mental impairment severity:
There are no medical records of mental health treatment from August 1, 2007, to the
present. He was apparently last seen on June 21, 2007. (Exhibit 2F, p 2) Evidence
mentioned below is from his primary care providers (PCP), other medical sources,
and/or the claimant’s own reports.

4

In July 2013, treatment records showed he had panic attacks “in the past” and the
claimant reported he had increasing anxiety symptoms. He said he had been yelling
and was easily aggravated, that he shook, and felt chest pressure and short of breath.
(Exhibit 5F )
In October 2013, E-Ling Cheah, Psy.D., performed a mental CE. Mr. Goppert
reported 3 visits to Centerstone Mental Health Center some 5 years earlier; that he
had medications prescribed by his PCP for panic attacks and depression. Legal
entanglements included a charge regarding accessory to a drug deal 22 years earlier
for which he served 3 months; a charge of theft 27 years earlier; and a couple of
charges regarding non-payment of child care. He was not currently on probation.
Diagnoses included anxiety disorder with mixed anxiety and depressive symptoms.
Global assessment of functioning (GAF) scores were 56 to 61, (which are scores
generally consistent with mild to moderate impairment). Dr. Cheah assessed mild
limitations in every area of mental functioning, except for moderate limitation in the
ability to adapt to changes. (Exhibit 3F) This moderate limitation assessed is
incorporated into the RFC with the following restriction: he can tolerate gradual,
infrequent workplace changes.
In July 2014, the claimant complained of dysthymia3 and said medications,
Vanlafaxine and Alprazolam, worked as far as his mood, but anhedonia4 continued.
(Exhibit 5F, p 16)
In March 2015, the claimant reported he had a panic attack at home. However,
Robert Kasper, M.D. reported he had good judgment and normal mood. (Exhibit 5F,
pp 1, 2)
In June 2015, the claimant reported panic attacks were “occasional.” An
examination showed he had normal mood, affect, speech, and thought processes.
(Exhibit 6F)
Regarding drug and alcohol issues, in July 2013, the claimant reported he stopped
drinking 2 years earlier. (Exhibit 5F) In October 2013, he reported he drank a
12-pack of beer and 7 shots of whiskey every day for 20 years; that his last drink was
3 years earlier (in 2010). In the past, he had used cocaine and methamphetamine “a
3

Dysthymia is “a mood disorder characterized by chronic mildly depressed or irritable mood
often accompanied by other symptoms (such as eating and sleeping disturbances, fatigue, and poor
self-esteem).” Dysthymia, Merriam-Webster Dictionary, (viewed Jan. 17, 2018),
http://www.merriam-webster.com/dictionary/dysthymia.
4

Anhedonia is “a psychological condition characterized by inability to experience pleasure
in normally pleasurable acts.” Anhedonia, Merriam-Webster Dictionary, (viewed Jan. 17, 2018),
http://www.merriam-webster.com/dictionary/anhedonia.
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couple of times a week ...for about 20 years” with his last use being 11 years earlier.
He reported he had never been in a rehabilitation program for substance abuse.
(Exhibit 3F) Mr. Goppert has a significant history of substance abuse, including
cocaine, meth, and alcohol, which left him homeless at times, the latest being in
2008, when he was first denied disability. At the hearing, he testified he last used
alcohol 4 or 5 years earlier and quit smoking 3 years earlier. There is no evidence
of more recent substance abuse. Therefore, it is determined his substance issues have
been in remission and his other impairments are not disabling. Thus, he is not
disabled, even considering a history of polysubstance abuse.
The claimant has no relevant medical evidence from the AOD of 2008 to 2013. He
had been to the doctor for back pain, but had not received mental health treatment
since 2007. His testimony was credible, as it pertained to his significant history of
substance abuse and increased anxiety. However, there are many inconsistencies that
weighed against his credibility regarding the severity of his symptoms. First, at the
hearing, the claimant testified he could not leave his room, was scared to death of
everything, and could not leave his house without his wife. However, the CE
performed after the hearing indicated he lived alone, and there was no note that the
claimant was accompanied to the CE. Despite his testimony of complete fear of
everything, he had not had any mental health treatment since 2007. In 2007, he only
went 3 times. When asked why he did not continue to go for mental health
treatment, he said it was because he became irritated when someone asked for his
autograph and because he had lost his insurance. He did not ask if he could continue
going without insurance and never found another mental health treatment provider.
The claimant was first diagnosed with panic attacks and depression in 1997 or 1998,
and he was given Xanax and Zoloft at that time, but he did not receive treatment
again until 2007. He was not on mental health medication between 1997 and 2007,
and he testified that he self-medicated with alcohol during that time. The claimant
testified he could not work because of fatigue, which was caused by the medication
he took for panic attacks. However, he testified he spent hours a day on Facebook,
reading, and watching British television. He testified he talked to his brother on the
phone and was able to attend school meetings for his son. The claimant testified that
he had difficulty bending, lifting, and turning, but when asked how much he could
lift with pain versus how much he could lift without pain, he said that he could lift
200 pounds with pain and only 15 pounds without pain. Neve1theless, the claimant
is able to do light household chores, including dishes, getting clothes out of the
washer or dryer, and he testified that he can lift a gallon of milk and a case of soda.
He also said he lifts his microphone stand for exercise. However, he also testified
he has to take muscle relaxers in order to stand. At his consultative exam following
the hearing, Dr. Robinson found the claimant could lift up to 20 pounds continuously
and up to 50 pounds occasionally. This is consistent with the claimant’s own
testimony regarding his physical capabilities. Dr. Robinson also found the claimant
could sit 7 or 8 hours a day for 2 hours at a time, stand 6 to 8 hours for 2 hours at a
time, and walk 5 to 8 hours for 2 hours at a time. (Exhibit 6F).
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(Tr. 21-23).
III. CONCLUSIONS OF LAW
A. Standard of Review
Review of the Commissioner’s disability decision is narrowly limited to determining whether
the decision is supported by substantial evidence and whether the Commissioner applied the right
legal standards in reaching the decision. Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir.
2014) (citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)). “Substantial
evidence requires ‘more than a mere scintilla’ but less than a preponderance; substantial evidence
is such ‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Buxton v. Halter, 246
F.3d 762, 772 (6th Cir. 2001)).

In determining whether substantial evidence supports the

Commissioner’s findings, a court must examine the record as a whole, “tak[ing] into account
whatever in the record fairly detracts from its weight.” Brooks v. Comm’r of Soc. Sec., 531 F. App’x
636, 641 (6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions of
credibility. See Garner, 745 F.2d at 387 (citing Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir.
1972)). 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)). “This is so because there is a ‘zone of choice’ within
which the Commissioner can act, without the fear of court interference.” Buxton, 246 F.3d at 773
(citations omitted); Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012) (“As long as

7

the ALJ cited substantial, legitimate evidence to support his factual conclusions, we are not to
second-guess: ‘If the ALJ’s decision is supported by substantial evidence, then reversal would not
be warranted even if substantial evidence would support the opposite conclusion.’”) (citation
omitted). However, where an ALJ fails to follow agency rules and regulations, the decision lacks
the support of substantial evidence, “even where the conclusion of the ALJ may be justified based
upon the record.” Miller, 811 F.3d at 833 (citation and internal quotation marks omitted).
B. Administrative Proceedings
The claimant has the ultimate burden of establishing his entitlement to benefits by proving
his or her “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. §
423(d)(1)(A); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (“[T]he claimant
bears the burden of proving the existence and severity of limitations caused by her impairments and
the fact that she is precluded from performing her past relevant work.”). The claimant’s “physical
or mental impairment” must “result[] from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id.
§ 423(d)(3). The Commissioner applies a five-step inquiry to determine whether an individual is
disabled within the meaning of the Social Security Act, as described by the Sixth Circuit as follows:
(1) a claimant who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings; (2) a claimant who does not have a severe
impairment will not be found to be disabled; (3) a finding of disability will be made
without consideration of vocational factors if a claimant is not working and is
suffering from a severe impairment which meets the duration requirement and which
meets or equals a listed impairment in Appendix 1 to Subpart P of the Regulations.
Claimants with lesser impairments proceed to step four; (4) a claimant who can
perform work that he has done in the past will not be found to be disabled; and (5)
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if a claimant cannot perform his past work, other factors including age, education,
past work experience and residual functional capacity must be considered to
determine if other work can be performed.
Parks v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm’r of Soc.
Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. §§ 404.1520; 416.920. The claimant bears the
burden through step four of proving the existence and severity of the limitations his impairments
cause and the fact that he cannot perform past relevant work; however, at step five, “the burden
shifts to the Commissioner to ‘identify a significant number of jobs in the economy that
accommodate the claimant’s residual functional capacity . . . .” Kepke v. Comm’r of Soc. Sec., 636
F. App’x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th
Cir. 2004)).
The Social Security Administration can carry its burden at the fifth step of the evaluation
process by relying on the Medical-Vocational Guidelines, otherwise known as “the grids,” but only
if a nonexertional impairment does not significantly limit the claimant, and then only when the
claimant’s characteristics precisely match the characteristics of the applicable grid rule. See
Anderson v. Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010); Wright v. Massanari, 321
F.3d 611, 615-16 (6th Cir. 2003). The grids otherwise only function as a guide to the disability
determination. Wright, 321 F.3d at 615-16; see also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir.
1990). Where the grids do not direct a conclusion as to the claimant’s disability, the Commissioner
must rebut the claimant’s prima facie case by coming forward with proof of the claimant’s
individual vocational qualifications to perform specific jobs, typically through vocational expert
(“VE”) testimony. Anderson, 406 F. App’x at 35; see Wright, 321 F.3d at 616 (citing SSR 83-12,
1983 WL 31253, *4 (Jan. 1, 1983)).

9

When determining a claimant’s residual functional capacity (“RFC”) at steps four and five,
the Commissioner must 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);
Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R. § 404.1545(e)).
C. Claims of Error
1. The ALJ erred in finding that Plaintiff had a high school education.
Plaintiff argues that the ALJ erred in finding that Plaintiff had a high school education in
spite of his testimony that he did not complete the eleventh grade. (Docket Entry No. 12-1, at 3).
Defendant contends that Plaintiff’s argument has no bearing on the outcome of this action as the
ALJ’s determination that there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform is supported by substantial evidence. (Docket Entry No. 16, at 5).
In his September 5, 2013 disability report, Plaintiff stated that he completed the twelfth grade
in June 1974. (Tr. 200). However, at the ALJ hearing, Plaintiff testified that he needed only one
more credit to complete his high school education. (Tr. 49). Plaintiff never repeated a grade and
never took any special education classes. (Tr. 300). Plaintiff also testified that he was able to read
and write, and could read a newspaper. (Tr. 50).
The VE was present for Plaintiff’s testimony and testified that based upon Plaintiff’s age,
education, past work experience and RFC, as hypothesized by the ALJ, Plaintiff could perform jobs
as meat clerk, hand packager, and motor vehicle assembler, all of which are unskilled, at the medium
exertional level and have a Specific Vocational Preparation (“SVP”) level of two. (Tr. 63-66). The
ALJ determined that the VE’s testimony was consistent with the Dictionary of Occupational Titles.
(Tr. 26, 66).

10

“Specific Vocational Preparation is defined as the amount of lapsed time required by a
typical worker to learn the techniques, acquire the information, and develop the facility needed for
average performance in a specific job-worker situation. This training may be acquired in a school,
work, military, institutional, or vocational environment.” See DOT, Appendix C - Components of
the Definition Trailer, 1991 WL 688702. Level SVP 2 is “[a]nything beyond short demonstration
up to and including [one] month.” Id. Jobs with SVP ratings of two are considered unskilled. See
SSR 82-41, 1982 WL 31389, at *2 (S.S.A. 1982) (“Jobs are unskilled when persons can usually
learn to do them in 30 days or less.”). “Unskilled occupations are the least complex types of work.”
Id.
“High school education and above means abilities in reasoning, arithmetic, and language
skills acquired through formal schooling at a 12th grade level or above.”

20 C.F.R. §§

404.1564(b)(4), 416.964(b)(4). The Commissioner “generally consider[s] that someone with these
educational abilities can do semi-skilled through skilled work.” Id. The Commissioner “generally
consider[s] that a 7th grade through the 11th grade level of formal education is a limited education.”
Id. §§ 404.1564(b)(3), 416.964(b)(3). “Limited education means ability in reasoning, arithmetic,
and language skills, but not enough to allow a person with these educational qualifications to do
most of the more complex job duties needed in semi-skilled or skilled jobs.” Id.
Based upon the record, the Magistrate Judge concludes that the ALJ properly considered the
testimony of the VE and properly determined that jobs are available in significant numbers in the
national economy that Plaintiff can perform. See Varley v. Sec’y of Health & Human Servs., 820
F.2d 777, 779 (6th Cir. 1987) (“Substantial evidence may be produced through reliance on the
testimony of a vocational expert in response to a ‘hypothetical’ question, but only ‘if the question

11

accurately portrays [plaintiff’s] individual physical and mental impairments.’”) (citation omitted);
Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010). These jobs are unskilled and
have an SVP level of two. Whether Plaintiff had a twelfth grade education or was one credit short
of it would not impact his ability to perform these jobs. Accordingly, the Magistrate Judge
concludes that this claim is without merit.
2. The ALJ failed to consider the effects of Plaintiff’s medications.
Plaintiff argues that the ALJ erred by failing to consider the effects of his medications.
(Docket Entry No. 12-1, at 3). In response, Defendant contends that the ALJ properly considered
the issue of side effects in assessing Plaintiff’s supportable degree of limitations. (Docket Entry No.
16, at 6).
The ALJ is required to consider “[t]he type, dosage, effectiveness, and side effects of any
medication . . . taken to alleviate . . . pain or other symptoms . . . .” 20 C.F.R. §§ 404.1529(c)(3)(iv),
416.929(c)(3) (2015). Allegations of a medication’s side effects must be supported by objective
medical evidence. See Essary v. Comm’r of Soc. Sec., 114 F. App’x 662, 665-66 (6th Cir. 2004)
(“Although Essary testified that she suffered from dizziness and drowsiness as a result of her
medications, Essary’s medical records make no indication that Essary reported such side effects to
any of her physicians. Thus, based on the record before him, the ALJ did not err in finding that
Essary suffered no adverse side effects from her medications.” (citing Steiner v. Sec’y of Health and
Human Servs., 859 F.2d 1228, 1231 (6th Cir.1987))).
The ALJ noted that, although Plaintiff testified that he could not work because of fatigue
caused by medication that he took for his panic attacks, Plaintiff spent hours a day on Facebook and
reading and watching television. (Tr. 23, 59). Plaintiff does not cite to any medical records that

12

show that he reported to medical providers about any alleged side effects from his medications. A
review of Plaintiff’s medical records do not show that Plaintiff regularly complained of any
significant side effects caused by his medications to his medical providers. In fact, on September
24, 2013, Plaintiff reported to Dr. Kasper that he did not have any side effects from his medications.
(Tr. 365). “The Sixth Circuit has found that where medical records give no indication that a plaintiff
reported side effects of medications to any physician, the ALJ does not err in finding the plaintiff
suffered no adverse effects from the medications.” Young v. Colvin, No. 2:12-CV-00050, 2014 WL
3724844, at *6 (M.D. Tenn. July 25, 2014), aff’d (Feb. 26, 2015) (citing Essary, 114 F. App’x at
665-66). Accordingly, the Magistrate Judge concludes that this claim is without merit.
3. The ALJ erroneously discounted the treatment of Dr. Kasper.
Plaintiff asserts that the ALJ erred in discounting the treatment of his treating physician, Dr.
Kasper, because he is not a mental health expert. (Docket Entry No. 12-1, at 3). Plaintiff’s assertion
is unclear and undeveloped. The only reference to Dr. Kasper is in the section of Plaintiff’s brief
entitled, “Statement of the Case,” where Plaintiff states:
The medical records concerning his treatment at Premier Medical Group by Dr.
Robert Kasper indicates that he is and has been taking prescribed narcotics for his
pain, muscle relaxers and medication for his anxiety and depression. [TR 212, 334,
331, 356] Even though the ALJ discounted the prescriptions for mental issues, it
appears generally that they do help the claimant, and his complaints of these issues
for years back up the need for some treatment for his anxiety, panic attacks and
depression. [TR 426]Further, Dr. Kasper is justified in treating his back pain. Mr.
Goppert testified that this had helped him, even with increased dosages. [TR 5F
3/10/15] This is supported by the X rays of Mr. Goppert’s lumbar and thoracic spine.
[TR 374 and 376] These X rays done in 2013 show “multilevel degenerative disc
changes of mild to moderate severity of lumbar spine and mild severity of thoracic
spine with narrowing and anterlateral osteophytic spurring.”
(Docket Entry No. 12-1, at 3).

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A court is not obligated on judicial review to formulate arguments on a plaintiff’s behalf.
Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006). “‘It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to
. . . put flesh on its bones.’” Moore v. Comm’r of Soc. Sec., 573 F. App’x 540, 543 (6th Cir. 2014)
(citing United States v. Stewart, 628 F.3d 246, 256 (6th Cir. 2010) (citation omitted)). “‘Issues
averted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.’” Id. (citing Stewart, 628 F.3d at 256 (citation omitted)).
In any event, the ALJ noted that Plaintiff did not receive mental health treatment from
August 1, 2007, to the present. (Tr. 22, 295). However, the ALJ did consider evidence in the record
from Plaintiff’s primary care providers, including Dr. Kasper, and other medical sources with regard
to Plaintiff’s mental impairments. (Tr. 22-24). The ALJ noted that Plaintiff’s July 2013 treatment
records showed that Plaintiff reported that he had panic attacks “in the past,” he had increasing
anxiety symptoms, he had been yelling, was easily aggravated, he shook, felt chest pressure, and was
short of breath. (Tr. 22, 371). The ALJ also noted that Plaintiff’s primary care providers had
prescribed him medications for his panic attacks and depression; that consultative examining
psychologist, Dr. Cheah, diagnosed Plaintiff with anxiety disorder with mixed anxiety and
depressive symptoms and assessed mild limitations in every area of mental functioning, except for
moderate limitation in the ability to adapt to changes, which was incorporated into Plaintiff’s RFC;
that in July 2014 Dr. Kasper noted that Plaintiff complained of dysthymia and said medications,
Vanlafaxine and Alprazolam, worked as far as his mood, but anhedonia continued; that in March
2015 Plaintiff reported he had a panic attack at home, but Dr. Kasper reported that Plaintiff had good
judgment and normal mood; and that in June 2015 consultative examining physician, Dr. Robinson,

14

noted that Plaintiff had normal mood, affect, speech, and thought processes with only occasional
panic attacks. (Tr. 22-24, 299-303, 330-31, 345, 376, 378).
Thus, the record shows that the ALJ considered the entire medical record, including Dr.
Kasper’s treatment of Plaintiff, in determining the severity of Plaintiff’s mental impairments and
Plaintiff’s RFC. Accordingly, the Magistrate Judge concludes that this claim is without merit.
4. The ALJ failed to provide Dr. Robinson with medical records or x-rays to review.
Plaintiff argues that, after ordering a post-hearing, consultative examination with Dr.
Robinson, the ALJ erred by failing to provide Dr. Robinson with any medical records or x-rays to
review. (Docket Entry No. 12-1, at 3). Defendant contends that the lack of additional medical
records for Dr. Robinson to review did not render his report less accurate or persuasive, as Plaintiff
ultimately bears the burden of proving disability. (Docket Entry No. 16, at 9).
On December 19, 2013, Plaintiff presented to Dr. Kapser who noted, with regard to
Plaintiff’s back, the following: “Spine is positive for posterior tenderness. Thoracic palpation
reveals bilateral tenderness from T8 to T12. Lumbar palpation reveals bilateral tenderness from L1
to S1. Negative straight leg raising. Negative elevated leg test. Comments: Pain with flexion.
Some limitation of rotation.” (Tr. 363). Dr. Kasper ordered x-rays of the thoracic and lumbar spine.
(Tr. 364). X-rays of the lumbar spine showed “multilevel degenerative disc changes of mild to
moderate severity with narrowing and anterolateral osteophytic spurring” and osseous alignment was
anatomic. (Tr. 374). No dominant focal abnormality was appreciated. Id. X-rays of Plaintiff’s
thoracic spine showed “mild dextroscoliosis centered at the midthoracic spine, likely positional,”
otherwise, osseous alignment was anatomic. (Tr. 375). There were “multilevel degenerative disc

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changes of mild-to-moderate severity, predominantly inferiorly, with narrowing and osteophytic
spurring.” Id. Otherwise, no dominant focal abnormality was appreciated. Id.
On March 10, 2015, Plaintiff presented to Dr. Kasper for a follow up for back pain. (Tr.
330). Plaintiff reported that he still suffered pain, but that the increased dose of medication helped
with the pain. Id. Plaintiff stated that the pain was in his lower back, but there was no radiation to
the legs; that he felt more pain when he bent over to pick up something; and that he felt pain if he
stood in one spot for too long. Id. Dr. Kasper noted that Plaintiff’s 2013 x-rays showed multilevel
degenerative disc changes of mild to moderate severity of lumbar spine and mild severity of thoracic
spine with narrowing and anterolateral osteophytic spurring and that osseous alignment was
anatomic. Id.
On May 27, 2015, at the conclusion of the ALJ hearing, the ALJ had the following colloquy
with Plaintiff’s attorney:
ALJ: I would like to send you to a doctor to have a physical consultative exam done,
and so he or she can check out the back issues that you’re having, because that has
not been done up to this point. That’s what I’m thinking. So, we’ll go ahead and do
that. That will take about 30 days. So, we’ll put in post and wait for that, and if
there’s any other records that you learn of, if you can get those in.
ATTY: I did want to point out to you, too, I’m sure you saw it, but the x-ray from
December of 2013.
ALJ: That was the basis for me thinking that a CE would be good for that, because
it’s an x-ray that finds mild to moderate degenerative changes. So, I would like to
see what a physician will say about that.

(Tr. 68).
On June 27, 2015, Plaintiff presented to Dr. Robinson for a consultative examination. (Tr.
376-87). Dr. Robinson noted that no medical records were available. (Tr. 379). Dr. Robinson listed

16

as Plaintiff’s chief complaint, the following: “Panic attacks, memory loss, depression, posttraumatic
stress disorder, anxiety, and sleep problems.” (Tr. 376). As to Plaintiff’s back pain, Dr. Robinson
reported:
Mr. Goppert does have some pain in his back. It is in his lower back and his lumbar
back. He was told that he had degenerative osteoarthritis of the back. If he stands,
if he walks, twists, turns, or any activity on his feet, he will have low back pain and
he points to about L3. This does radiate into the bilateral lower extremities
posteriorly as mentioned present with any activity he does. No medicine has helped
him. Lying flat in bed sometimes helps.
(Tr. 376).
Upon examination, Dr. Robinson noted that Plaintiff’s ranges of motion were normal except
in the dorsolumbar spine; that his straight leg raise test was positive to 60 degrees on the right and
70 degrees on the left; his upper extremity pinch, grip strength, and fine and gross motor
manipulation were normal; and his bilateral upper and lower extremities had full strength (5/5). (Tr.
378). Plaintiff did have some moderate cervical and lumbosacral spine tenderness to palpation, but
no muscle spasm, and he had no sensory loss. Id. Because of back pain, Plaintiff could “do
reciprocate heel-to-toe walk with some difficulty.” Id. Dr. Robinson noted that Plaintiff walked
fairly normally, but slowly; Plaintiff could not rise from a seated position without the use of his
arms; and that Plaintiff had trouble getting on and off the examination table. Id. In his Medical
Source Statement, Dr. Robinson opined that Plaintiff could lift up to 50 pounds occasionally and 20
pounds continuously; sit, stand and walk for 2 hours at a time; in an 8 hour work day sit for 7 hours,
stand for 6 hours and walk for 5 hours; frequently reach with both upper extremities; handle, finger
and feel continuously with his right hand; handle, finger, and feel frequently with his left hand;
push/pull occasionally with his right hand; never push/pull with his left hand; and occasionally
operate foot controls with both lower extremities. (Tr. 383-84). As to postural activities, Plaintiff
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could occasionally climb stairs and ramps, climb ladders or scaffolds, stoop, kneel, crouch, and
crawl and frequently balance. (Tr. 384).
Title 20 C.F.R. §§ 404.1517 and 416.917 authorize an ALJ to refer a claimant to a
consultative examiner “to have one or more physical or mental examinations or tests.” Sections
404.1517 and 416.917 provide that if the Commissioner arranges for a consultative examination the
Commissioner “will . . . give the examiner any necessary background information about [the
claimant’s] condition.” Here, Dr. Robinson noted that no medical records were available, nor does
Defendant dispute that the ALJ did not send any of Plaintiff’s medical records to Dr. Robinson to
review. (Tr. 379, 250).
In Brantley v. Comm’r of Soc. Sec., 637 F. App’x 888, 894 (6th Cir. 2016), the plaintiff
argued that the ALJ’s failure to provide consultative examiners with the medical records from the
plaintiff’s prior period of disability violated the ALJ’s obligation to give examiners “any necessary
background information” about the plaintiff’s medical condition. The Sixth Circuit held that
pertinent medical records constitute “necessary background information” under § 404.1517. The
Court explained:
In the course of discussing “background information” for consultative examinations,
the POMS [Program Operations Manual System] specifically instructs SSA
employees to provide consultative examiners with “duplicates or summaries of
relevant evidence such as ... [m]edical evidence of record including any medical
opinion(s).” Soc. Sec. Admin., DI 22510.017 Consultative Examination (CE)
Appointment Notice, https://secure.ssa.gov/apps10/poms.nsf/lnx/042251001 (last
visited Oct. 15, 2015). Additionally, the Commissioner’s Hearings, Appeals and
Litigation Law Manual (“HALLEX”) instructs the ALJ or hearing office staff to
supplement a request for a consultative examination with “[a] medical exhibits folder
which contains evidence relating to the type of examination ordered with instructions
for the State agency to send the folder to the consultative examiner for review.” Soc.
Sec. Admin., Consultative Examinations and Tests, Hearings, Appeals, and Litig.
Law Manual, http://ssa.gov/OP_Home/hallex/I-02/I-2-5-20.html (last visited Oct. 15,
2015).
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Id. at 894-95. The Court also noted that the ALJ had failed to pass along objective medical
evidence, not merely subjective complaints. Id. at 895.
The Sixth Circuit rejected the defendant’s argument that “‘the examiners were still able to
glean the background necessary for them to proceed with their examinations and to render
professional opinions,’” stating that “even if a lack of medical records does not entirely prevent a
consultative examiner from rendering ‘a reasonably good estimate of his current intellectual
functioning,’ it can impair the examiner’s ability to present his conclusions with greater precision
and confidence or bolster them with references to the medical evidence.” Id. at 895-96.
However, the Sixth Circuit found that the defendant’s “prejudice argument-i.e., that even had
the ALJ provided the examiners with [the plaintiff’s] medical records, the ALJ would have reached
the same conclusion-” was somewhat of a closer question. Id. at 896. Nevertheless, the Court
rejected the defendant’s “harmless error” argument, citing Wilson v. Comm’r of Soc. Sec., 378 F.3d
541 (6th Cir. 2004), and stating:
In [Wilson], we explained that the reason why enforcement of the regulation in that
case was so important was that the regulation “ensures that the ALJ applies the
[law].” Wilson, 378 F.3d at 544. In Wilson, we said that to excuse noncompliance
simply because there is substantial evidence that a different outcome on remand is
unlikely would not be right. “To hold otherwise, and to recognize substantial
evidence as a defense to non-compliance with [the regulation at issue], would afford
the Commissioner the ability [to] violate the regulation with impunity and render the
protections promised therein illusory.” Id. at 546.
Id. at 896.
The Sixth Circuit explained:
Not to reverse a decision that resulted from the ALJ’s violation of the law-either
negligently or otherwise-required for a fair decision would “afford the Commissioner
the ability [to] violate the regulation with impunity and render protections promised
therein illusory.” Furthermore, an agency’s failure to follow its own regulations

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“tends to cause unjust discrimination and deny adequate notice contrary to
fundamental concepts of fair play and due process.”
Id. at 896-97 (citations omitted).
Here, the ALJ specifically referred Plaintiff to Dr. Robinson for a consultative examination
because the December 2013 x-rays showed multilevel degenerative disc changes of mild to moderate
severity of lumbar spine and mild severity of thoracic spine. Yet, the ALJ did not provide any
medical records or x-rays to Dr. Robinson to review. Therefore, based upon the Sixth Circuit’s
analysis in Brantley, the Magistrate Judge concludes that under 20 C.F.R. §§ 404.1517 and 416.917
the ALJ was obligated to provide Dr. Robinson with Plaintiff’s medical records and x-rays and
failure to do so constituted error. See Barnett v. Berryhill, No. 3:16-cv-00279, 2017 WL 2537362,
at *3, 4 (S.D. Ohio June 12, 2017), report and recommendation adopted, No. 3:16-CV-279, 2017
WL 4281126 (S.D. Ohio Sept. 27, 2017) (citing Brantley and holding that 20 C.F.R. § 404.1517
“triggered a mandatory procedural duty related to Plaintiff’s medical records” and that remand was
necessary for proper consideration of the plaintiff’s claims.); McCarter v. Berryhill, No.
3:16-CV-385-CCS, 2018 WL 327765, at *8 (E.D. Tenn. Jan. 8, 2018).
In Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171 (6thCir. 1994), the Sixth Circuit
addressed the issue of “what a district court should do once a determination is made that an ALJ
erroneously applied the regulations and the [Commissioner]’s denial of benefits therefore must be
reversed.” Id. at 173. The Court concluded that “when the [Commissioner] misapplies the
regulations or when there is not substantial evidence to support one of the ALJ’s factual findings and
his decision therefore must be reversed, the appropriate remedy is not to award benefits. The case
can be remanded under sentence four of 42 U.S.C. § 405(g) for further consideration.” Id. at 175-

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76.5 The Court explained, “[u]nder sentence four, the court makes a final judgment, affirming,
reversing, or modifying the [Commissioner’s] decision and may order the [Commissioner] to
consider additional evidence on remand to remedy a defect in the original proceedings, a defect
which caused the [Commissioner’s] misapplication of the regulations in the first place.” Id. at 175.
However,
[i]f a court determines that substantial evidence does not support the
[Commissioner’s] decision, the court can reverse the decision and immediately
award benefits only if all essential factual issues have been resolved and the record
adequately establishes a plaintiff's entitlement to benefits. . . . A judicial award of
benefits is proper only where the proof of disability is overwhelming or where the
proof of disability is strong and evidence to the contrary is lacking.
Id. at 176.
Based upon the record, a judicial award of benefits would not be proper as neither the proof
of disability is overwhelming nor is the proof of disability strong while the evidence to the contrary
is lacking. Thus, the Magistrate concludes that the ALJ’s failure to comply with the Social Security
Agency’s (“SSA”) regulations warrants remand under sentence four of 42 U.S.C. § 405(g) for proper
consideration of Plaintiff’s claim.
5. The Court should remand based upon additional evidence.
Plaintiff argues that medical evidence attached to his brief constitutes new and material
evidence regarding his mental impairments and that the Court should therefore remand this action

5

Sentence four of 42 U.S.C. § 405(g) states as follows:

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).
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under sentence six of 42 U.S.C. § 405(g) to consider Plaintiff’s new and material evidence. (Docket
Entry No. 12-1, at 5). The new evidence consists of a short letter dated February 23, 2017, from
therapist Julia Waskiewicz, stating that Plaintiff is her patient at Centerstone and his current
diagnoses include PTSD and major depressive disorder, recurrent episode, severe. (Docket Entry
No. 12-2).
“Under sentence six, a district court, before making a final judgment, may order the
[Commissioner] to consider additional evidence because a party presents material evidence to the
court that was not previously available.” Faucher, 17 F.3d at 175.6 A court may “remand the case
for further administrative proceedings in light of the evidence, if a claimant shows that the evidence
is new and material, and that there was good cause for not presenting it in the prior proceeding.”
Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996).

6

Sentence six of 42 U.S.C. § 405(g) states as follows:

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.
42 U.S.C. §§ 405(g), 1383(c)(3).
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Given the Magistrate Judge’s conclusion that this action should be remanded under sentence
four of 42 U.S.C. § 405(g) for the ALJ’s failure to comply with SSA regulations, the Magistrate
Judge concludes that the Court need not consider whether Plaintiff’s newly submitted evidence
meets the criteria for a sentence six remand. Duehring v. Comm’r of Soc. Sec., No. 14-CV-11275,
2016 WL 865844, at *6 (E.D. Mich. Mar. 7, 2016).
IV. CONCLUSION AND RECOMMENDATION
For the reasons explained above, the Magistrate Judge RECOMMENDS that Plaintiff's
motion for judgment on the administrative record (Docket Entry No. 11) be GRANTED, and the
Commissioner’s decision be REVERSED. The parties have fourteen (14) days of being served with
a copy of this Report and Recommendation to serve and file written objections to the findings and
recommendation proposed herein. A party shall respond to the objecting party’s objections to this
Report and Recommendation within fourteen (14) days after being served with a copy thereof.
Failure to file specific objections within fourteen (14) days of receipt of this Report and
Recommendation may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, 142,
reh’g denied, 474 U.S. 111 (1986); see Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011).
ENTERED this 23rd day of January, 2018.

/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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