Morris v. Commissioner of Social Security

Filing 18

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Chief Judge S. Thomas Anderson on 5/18/17. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TONY R. MORRIS,

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Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Case No: 1:13-cv-01048-STA-cgc

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
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Plaintiff Tony R. Morris filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying his application for disability insurance benefits under
Title II of the Social Security Act (“Act”). Plaintiff’s application was denied initially and upon
reconsideration by the Social Security Administration. Plaintiff then requested a hearing before
an administrative law judge (“ALJ”), which was held on December 6, 2010. On June 28, 2011,
the ALJ denied the claim. The Appeals Council subsequently denied the request for review.
Thus, the decision of the ALJ became the Commissioner’s final decision. For the reasons set
forth below, the decision of the Commissioner is AFFIRMED.
Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision
made by the Commissioner after a hearing to which he was a party. “The court shall have the
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

1

cause for a rehearing.”1 The Court’s review is limited to determining whether there is substantial
evidence to support the Commissioner’s decision,2 and whether the correct legal standards were
applied.3
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”4 It is “more than a mere scintilla of evidence, but less than a
preponderance.”5 The Commissioner, not the Court, is charged with the duty to weigh the
evidence, to make credibility determinations and resolve material conflicts in the testimony, and
to decide the case accordingly.6

When substantial evidence supports the Commissioner’s

determination, it is conclusive, even if substantial evidence also supports the opposite
conclusion.7
Plaintiff was born on November 22, 1964. He has a high school education and past
relevant work as a welder and material handler.

Plaintiff’s application alleged disability

beginning on May 1, 2008, due to lower back pain, major depression, anxiety, chronic fatigue,
and arthritis. Subsequently, Plaintiff amended his alleged onset date to June 30, 2009.
1

42 U.S.C. § 405(g).

2

Id.

3

Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). See also Landsaw v. Sec’y of Health &
Human Servs, 803 F.2d 211, 213 (6th Cir. 1986).

4

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S.
389 (1971)).

5

Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)).

6

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d
642, 644 (6th Cir. 1990); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
7

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
2

The ALJ made the following findings: (1) Plaintiff met the insured status requirements
through September 30, 2011; (2) Plaintiff has not engaged in substantial gainful activity since the
alleged onset date; (3) Plaintiff has the following severe impairments: lumbar degenerative disc
disease, status post discectomy, major depressive disorder and panic disorder with agoraphobia;
but he does not have impairments, either alone or in combination, that meet or equal the
requirements of any listed impairment contained in 20 C.F.R. pt. 404, subpt. P, app. 1 of the
listing of impairments; (4) Plaintiff retains the residual functional capacity to lift and carry ten
pounds occasionally, stand or walk for two hours in an eight-hour workday, and sit for six hours
in an eight-hour workday; Plaintiff is restricted to unskilled work; (5) Plaintiff is unable to
perform his past relevant work; (6) Plaintiff was a younger individual with a high school
education on the alleged amended onset date; (7) Plaintiff has no transferable skills, but
transferability of job skills is not material to the determination of disability because using the
Medical-Vocational Guidelines supports a finding that Plaintiff is not disabled whether or not he
has transferable job skills; (8) considering Plaintiff’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform; (9) Plaintiff was not under a disability as defined in the Act
at any time through the date of this decision.
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.8 The claimant bears the ultimate burden of establishing an entitlement to benefits.9 The
initial burden of going forward is on the claimant to show that he is disabled from engaging in
his former employment; the burden of going forward then shifts to the Commissioner to

8

42 U.S.C. § 423(d)(1).

9

Born v. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir. 1990).
3

demonstrate the existence of available employment compatible with the claimant’s disability and
background.10
The Commissioner conducts the following, five-step analysis to determine if an
individual is disabled within the meaning of the Act:
1. An individual who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2. An individual 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 an
individual 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.
4. An individual who can perform work that he or she has done in the past will not be
found to be disabled.
5. If an individual cannot perform his or her 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.11
Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.12 Here, the sequential analysis proceeded to the fifth step
with a finding that, although Plaintiff cannot perform his past relevant work, a substantial
number of jobs exists in the national economy that he can perform.
Plaintiff argues that substantial evidence does not support the ALJ’s findings.

He

specifically argues that the ALJ erred by not properly evaluating the medical evidence in the
record, especially the opinions of the consultative examiner and independent medical examiner;

10

Id.

11

Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).

12

20 C.F.R. § 404.1520(a).
4

by not providing sufficient reasons for rejecting the psychological evaluation rendered by a
licensed psychologist following the hearing; by improperly assessing his mental residual
functional capacity; and by relying on the Medical-Vocational Guidelines (the “grids”) find that
there is other work that he can perform. Plaintiff’s arguments are not persuasive.
Weighing of Medical Evidence
Medical opinions are to be weighed by the process set forth in 20 C.F.R. § 404.1527(c).
Under the treating physician rule, an ALJ must give controlling weight to the opinion of a
claimant’s treating physician if it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the claimant’s] case record.”13 The term “not inconsistent” is meant to convey that “a wellsupported treating source medical opinion need not be supported directly by all of the other
evidence, (i.e., it does not have to be consistent with all the other evidence) as long as there is no
other substantial evidence in the case record that contradicts or conflicts with the opinion.”14
Opinions from non-treating sources are not assessed for controlling weight. Instead,
these opinions are weighed based on specialization, consistency, supportability, and any other
factors “which tend to support or contradict the opinion” may be considered in assessing any
type of medical opinion.15 Generally, an opinion from a medical source who has examined a
claimant is given more weight than that from a source who has not performed an examination,16
and an opinion from a medical source who regularly treats the claimant is afforded more weight
13

20 C.F.R. § 404.1527(c)(2).

14

Soc. Sec. Rul. 96–2P.

15

20 C.F.R. § 404.1527(c).

16

20 C.F.R. § 404.1502, 404.1527(c)(1).
5

than that from a source who has examined the claimant but does not have an ongoing treatment
relationship.17 In other words, “[t]he regulations provide progressively more rigorous tests for
weighing opinions as the ties between the source of the opinion and the individual become
weaker.”18
Although Plaintiff suffers from lumbar degenerative disc disease, status post discectomy,
the ALJ concluded that he was able to perform some physical work activities. In reaching this
conclusion, the ALJ looked at treatment notes, diagnostic test results, examination findings, and
Plaintiff’s medication history, as well as the medical opinions in the record. The ALJ noted that,
in December 2004, Plaintiff underwent a right L4-5 discectomy to treat a herniated nucleus
pulposus.19 Although Plaintiff subsequently continued to experience pain, an MRI of his lumbar
spine performed in February 2007 indicated only a possible scar complex at L4-5, impinging the
right L5 nerve root, and a small central disc bulge at L5-S1, with no impingement or stenosis.20
On July 9, 2009, Plaintiff reported to Ezekiel Adetunji, M.D., that he was doing fine with
Cymbalta and Lyrica.21 On September 10, 2009, Michael McAdoo, M.D., examined Plaintiff
and found non-antalgic gait, normal sensation, and normal motor strength bilaterally; although
Plaintiff had lumbar tenderness, lumbar muscle spasm, and limited range of motion, a straight

17

20 C.F.R. § 404.1502, 404.1527(c)(2).

18

Soc. Sec. Rul. No. 96–6p.

19

R. 281.

20

R. 260, 312.

21

R. 315.
6

leg test was negative.22 Festus Arinze, M.D., reported essentially normal findings in 2009, as did
Dr. McAdoo on March 12, 2010.23
In assessing Plaintiff’s residual functional capacity, the ALJ considered the reports of
non-treating consultative examiners Kevin G. Gray, M.D., and Leonard A. Hayden, M.D., and
gave their opinions little weight. The ALJ looked at the above cited treatment notes and
examination findings when evaluating the reports and opinions of Dr. Gray and Dr. Hayden. Dr.
Gray examined Plaintiff on November 23, 2010. Dr. Gray found the musculoskeletal exam
unremarkable, other than diffuse low back pain.24 Dr. Gray further found impaired strength in the
lower extremities, but no lumbar spine pain.25 Dr. Gray filled out an assessment form in which
he opined that Plaintiff could occasionally lift and carry, for up to a third of an eight-hour
workday, a maximum of less than ten pounds, noted that Plaintiff “appear[ed] to have significant
disability with chronic low back pain,” and then opined that Plaintiff “would have significant
lifting, bending, and twisting restrictions.”26 Dr. Gray also concluded that Plaintiff’s “psych
meds would impair him on the job and he could not work and take these medicines.”27
The ALJ gave Dr. Gray’s opinion little weight because he examined Plaintiff on only
one occasion, and Plaintiff’s examination was unremarkable, with the exception of diffuse

22

R. 458-59.

23

R. 27, 326, 445-47, 456-59.

24

R. 467-68.

25

Id.

26

Id.

27

Id.
7

musculoskeletal back pain. The ALJ also considered the fact that Dr. Gray’s report did not
reflect that Plaintiff stopped working for reasons other than medical ones.
Plaintiff contends that the record does not support the ALJ’s statement that he left his job
due to economic factors. To the contrary, Plaintiff reported to John D. Brophy, M.D., a treating
physician, that five days after he had re-injured his back at work, the plant closed, and he was
laid off.28 Although the July 2009 disability report indicates that Plaintiff went “ahead with the
factory layoff early due to [his] condition of extreme pain and depression,29 Plaintiff reported to
Dennis W. Wilson, Ph.D., a consultative psychological examiner, that he lost his job because the
factory closed, not because he was injured and could no longer do the work.30 Furthermore,
while Plaintiff did testify that the plant shut down several months after he was injured in January
2007, he did not testify that he left his job because of an injury.31
The ALJ could properly discount Dr. Gray’s statement that he was uncertain what could
be done to alleviate Plaintiff’s chronic low back pain because, at the time of the examination,
Plaintiff was only taking over-the-counter medications on an as-needed basis.32 Dr. Gray’s
statement that Plaintiff could not work and take his mental health medicine is of limited

28

R. 290-91, 293, 295.

29

R. 161.

30

R. 484.

31

R. 4.

32

See Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 729–30 (6th Cir. 2013) (“The ALJ
correctly recognized that Dr. Butler’s opinion that Rudd could not perform sedentary work
conflicted with Rudd's sparse treatment, Rudd’s x-rays, and use of over-the-counter
medication.”)
8

probative value because Dr. Gray did not indicate what kind of work would be affected.33 Thus,
substantial evidence supports the ALJ’s determination to give little weight to Dr. Gray’s opinion.
The ALJ also discounted Dr. Hayden’s report. Dr. Hayden examined Plaintiff three
weeks after the hearing. In a medical source statement, Dr. Hayden opined that Plaintiff could
frequently lift and carry up to ten pounds and occasionally lift and carry eleven to twenty
pounds; he could sit for three hours without interruption for a total of three hours in an eighthour workday, stand for one hour without interruption for a total of two hours, and walk for one
hour without interruption for a total of three hours; he could never operate foot controls because
of his sciatica symptoms; he could occasionally climb stairs and ramps, stoop, and crouch, but
never climb ladders or scaffolds, balance, kneel, or crawl; and he could perform activities like
shopping, travel unassisted, walk a block at a reasonable pace on rough or uneven surfaces, use
standard public transportation, and sort, handle, or use paper/files, among other activities.34
The ALJ gave Dr. Hayden’s opinion little weight because the postural limitations and the
restrictions he imposed concerning Plaintiff’s ability to sit, stand, and walk during the course of
an eight-hour workday were inconsistent, to some degree, with Dr. Hayden’s own opinion
concerning Plaintiff’s ability to perform various daily activities. For example, Dr. Hayden’s
opinion that Plaintiff could sit for no more than a total of three hours in an eight-hour workday
and could never balance or kneel is inconsistent with an individual who can perform the
activities listed on the assessment form. Consistency is a factor that must be considered in

33

R. 466-67.

34

R. 476-81.
9

deciding what weight to give a medical opinion,35 and, consequently, substantial evidence
supports the ALJ’s determination that Dr. Hayden’s opinion should be given little weight.
The ALJ explained that the opinion of consultative examiner Dennis W. Wilson, Ph.D., 36
was entitled to little weight because the minimal mental health evidence, along with Plaintiff’s
daily activities,37 supported a finding that Plaintiff had no more than mild limitations in the area
of getting along and being with others. The ALJ also noted that, although Dr. Wilson assessed a
major depressive disorder with psychotic features and a panic disorder with agoraphobia,
Plaintiff had never previously reported any psychotic symptoms or agoraphobia and did not
report such symptoms at the hearing.
The ALJ explained that, in spite of expert opinions that Plaintiff had no severe mental
impairment, he restricted Plaintiff to unskilled work to give him “the full benefit of the doubt.”
Because the ALJ followed the procedure set forth in 20 C.F.R. § 404.1520a to evaluate mental
impairments and incorporated those findings into his written decision and explained his reasons,
his decision is supported by substantial evidence, and substantial evidence supports the weight
given to all the medical evidence and opinions in the record.
Mental Residual Functional Capacity Finding
Plaintiff argues that the ALJ improperly ignored his GAF score in determining his mental
residual functional capacity. Although the ALJ did not address Plaintiff’s GAF score in his

35

See 20 C.F.R. § 404.1527(c)(4).

36

R. 483-89.

37

Plaintiff’s daily activities included socializing with his children, preparing meals, mowing the
lawn with a riding mower, shopping, driving, and attending church services three times a week.
R. 431.
10

decision, an ALJ is not required to address every piece of evidence in the record.38 Nor is it
necessary for the ALJ to reference a GAF score in his decision.39 While a GAF score may be of
help to the ALJ in formulating the residual functional capacity finding, the ALJ is not required to
use it.40
Next, Plaintiff complains that the ALJ erred by failing to provide a function-by-function
mental residual functional capacity finding. SSR 96-8p requires the ALJ to individually assess
the claimant’s exertional and non-exertional capacities. “Although SSR 96-8p requires a
‘function-by-function evaluation’ to determine a claimant’s RFC, the ALJ is not required to
produce a detailed statement in writing. . . . [T]he ALJ need only articulate how the evidence in
the record supports the RFC determination, discuss the claimant’s ability to perform sustained
work-related activities, and explain the resolution of any inconsistencies in the record.”41
In making his decision, the ALJ discussed the dearth of mental health evidence and then
properly weighed the opinion of Dr. Wilson, as discussed above. The ALJ noted that Plaintiff
had sought only occasional mental health treatment for dysthymia and an anxiety disorder prior
to his alleged onset date and did not do so after February 2008.42 Although the failure to seek

38

See Kornecky v. Comm’r of Soc. Sec., 167 F.App’x 496, 507-08 (6th Cir. 2006). The GAF is
a 100 point scale divided into numerical ranges, which permits clinicians to assign a single
ranged score to a person’s psychological, social, and occupational functioning. See American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32, 34.

39

See, e.g., Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) (rejecting
claimant’s argument that case should be remanded because the ALJ failed to consider her GAF
score).
40

See Kornecky, 167 F.App’x at 502 n.7 (“A GAF score may help an ALJ assess mental RFC,
but it is not raw medical data.”).

41

Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 547-48 (6th Cir. 2002).

42

R. 252.
11

medical care “should not be a determinative factor” when the claimant is operating under a
mental impairment,43 in the present case, “there is no evidence suggesting that [Plaintiff’s]
mental condition somehow hindered him from seeking examination or treatment.”44
Accordingly, substantial evidence supports the finding of the ALJ as to Plaintiff’s mental
residual functional capacity.
Use of the Medical-Vocational Guidelines (the “grids”)
Plaintiff argues that the ALJ erred by employing the grids because they do not apply
when there are significant non-exertional limitations resulting from a mental impairment. At step
five, the Commissioner must identify a significant number of jobs in the economy that
accommodate the claimant’s residual functional capacity and vocational profile.45

The

Commissioner may carry this burden by applying the grids46 which directs a conclusion of
“disabled” or “not disabled” based on the claimant’s age and education and on whether the
claimant has transferable work skills.47 If a claimant suffers from non-exertional impairments
that preclude his performing a full range of work at a given exertional level, Plaintiff correctly
notes that the Commissioner may not reply on the grids alone.48 However, if the presence of a
non-exertional limitation does not significantly limit the range of work a claimant may perform,

43

Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989).

44

Strong v. Soc. Sec. Admin., 88 F. App’x 841, 846 (6th Cir. 2004).

45

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).

46

20 C.F.R. Pt. 404, Subpt. P, App. 2.

47

Wright v. Massanari, 321 F.3d 611, 615 (6th Cir. 2003); Burton v. Sec’y of Health & Human
Servs., 893 F.2d 821, 822 (6th Cir. 1990).

48

See Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 424 (6th Cir. 2008).
12

then the Commissioner may rely exclusively on the grids.49 The mere presence of a mental
impairment does not preclude the use of the grids.50
The ALJ’s residual functional capacity assessment accounts for Plaintiff’s mental health
issues by limiting him to unskilled work. The limitation to unskilled work had no effect on
Plaintiff’s ability to perform the full range of sedentary work because all jobs under the grids are
unskilled.51 Grid rules 201.28 and 201.21 satisfied the Commissioner’s burden of showing that
work exists in significant numbers in the national economy which Plaintiff can perform;
therefore, the ALJ was not required to obtain testimony from a vocational expert. The grids
provided substantial evidence to support the ALJ’s conclusion that Plaintiff could perform other
work and was not disabled within the meaning of the Act.
Because substantial evidence supports the ALJ’s determination that Plaintiff was not
disabled and the proper rules were followed, the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: May 18, 2017

49

Id.

50

See Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990) (“A mental impairment must
produce work-related limitations that significantly affect the claimant's ability to perform a full
range of work at a given exertional level before a mental impairment precludes the use of the
medical-vocational guidelines.”).

51

See 20 C.F.R. pt. 404, subpt. P, app. 2 § 200.00(b) (stating that “administrative notice has
been taken of the numbers of unskilled jobs that exist throughout the national economy at the
various functional levels”).
13