Jones v. Commissioner of Social Security

Filing 15

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Judge J. Daniel Breen on 3/30/17. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TERESA GAYLE JONES,
Plaintiff,
v.

No. 13-1134

NANCY A. BERRYHILL, 1 Acting
Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
______________________________________________________________________________
INTRODUCTION AND PROCEDURAL BACKGROUND
Before the Court is the Social Security action of the Plaintiff, Teresa Gayle Jones,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Acting
Commissioner of Social Security denying her claim for disability insurance benefits (“DIB”).
On April 12, 2010, she applied for disability and DIB alleging disability as of July 23, 2009.
Jones subsequently amended her onset date to May 13, 2010. The claim was denied initially and
upon reconsideration. Following a hearing, Administrative Law Judge (“ALJ”) K. Barlow
denied her claim on January 6, 2012. Plaintiff’s request for review of the ALJ’s decision was
denied by the Appeals Council on March 23, 2013, and this action was commenced two months
later. Before the Court is the Plaintiff’s first motion for judgment on the pleadings. (Docket
Entry (“D.E.”) 10.)

1

At the time the complaint was filed, Carolyn W. Colvin was Acting Commissioner of
Social Security. Since January 23, 2017, the post has been held by Nancy A. Berryhill.

ADMINISTRATIVE HEARING
The ALJ heard testimony from the Plaintiff and from Nancy Newbell Hughes, a
vocational expert (“VE”). Jones had an eighth grade education and past work as a cook, cashier,
stocker and machine operator. She also acted as caregiver to her disabled husband. Plaintiff told
the ALJ she was unable to work because she could not tolerate being around other people. On an
average day, Jones helped her mother get her handicapped brother up, prepared her husband’s
meals and spent the remainder of the day watching television. She reported mood swings,
memory problems and anxiety. Plaintiff also suffered from deep vein thrombosis (“DVT”) in
her left leg, for which she underwent surgery shortly before the hearing.
The VE characterized Jones’s previous relevant jobs as requiring medium and light levels
of exertion. She opined that, assuming simple routine tasks, no exposure to the public, and
occasional changes in the work environment, Plaintiff could perform jobs in the economy,
including conveyor offbearer, floor waxer and box truck washer.
ADMINISTRATIVE DECISION
Upon hearing testimony and reviewing the evidence, the ALJ made the following
findings:
1.

The claimant last met the insured status requirements of the Social
Security Act on June 30, 2011.

2.

The claimant did not engage in substantial gainful activity during the
period from her amended alleged onset date of May 13, 2010 through her
date last insured of June 30, 2011 (20 CFR 404.1571 et seq).

3.

Through the date last insured, the claimant had the following severe
impairments: history of deep vein thrombosis, major depressive disorder
and adjustment disorder with depression and anxiety.
(20 CFR
404.1520(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of
2

one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
5.

After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional
capacity to perform medium work as defined in 20 CFR 404.1567(c)2
except that she needs simple, routine tasks with no exposure to the public
and only occasional changes in the work environment.

6.

Through the date last insured, the claimant was unable to perform any past
relevant work (20 CFR 404.1565).

7.

The claimant was born on October 22, 1964 and was 46 years old, which
is defined as a younger individual age 18-49, on the date last insured (20
CFR 404.1563).

8.

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

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.

Through the dated [sic] last insured, considering the claimant’s age,
education, work experience, and residual functional capacity, there were
jobs that existed in significant numbers in the national economy that the
claimant could have performed (20 CFR 404.1569 and 404.1569(a)).

11.

The claimant was not under a disability, as defined in the Social Security
Act, at any time from May 13, 2010, the alleged onset date, through June
30, 2011, the date last insured (20 CFR 404.1520(g)).

(Administrative Record (“AR”) 14-23.)
PLAINTIFF’S STATEMENT OF ERRORS
The Plaintiff challenges the ALJ’s unfavorable ruling on four grounds:
1.

The ALJ erred by significantly misrepresenting and/or mischaracterizing
the evidence and not giving proper consideration to Plaintiff’s mental
health treatment records and assessments;

2

The regulation defines medium work as “lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c).
3

2.

The ALJ erred by providing great weight to the assessment of the State
agency medical consultant regarding Plaintiff’s physical limitations, as
this opinion was provided without the benefit of Plaintiff’s updated
medical records;

3.

The ALJ erred by failing to provide for any limitations in [her] residual
functional capacity finding which result from Plaintiff’s deep venous
thrombosis, which the ALJ [herself] found to be a severe impairment;
[and]

4.

[The] ALJ erred in failing to consider or evaluate the Plaintiff’s obesity n
accordance with Social Security Ruling 02-01p.

(D.E. 11 at PageID 342-43.)
STANDARD OF REVIEW
A federal court’s review of the Social Security Administration’s denial of a claim for
benefits “is limited to determining whether it is supported by substantial evidence and was made
pursuant to proper legal standards.” Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir.
2014). “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)
(internal quotation marks omitted). “This standard presupposes that there is a zone of choice
within which the decisionmakers can go either way, without interference by the courts.” Sorrell
v. Comm’r of Soc. Sec., 656 F. App’x 162, 168 (6th Cir. 2016). “If substantial evidence supports
the ALJ’s decision, then reversal is unwarranted even if substantial evidence backs the opposite
conclusion.” Turk v. Comm’r of Soc. Sec., 647 F. App’x 638, 639 (6th Cir. 2016) (citing Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Stated differently, “[u]pon a finding that there is
substantial evidence to support the ALJ’s findings, [the court] must affirm, and may not even
inquire whether the record could support a decision the other way.” Staymate v. Comm’r of Soc.

4

Sec., ___ F. App’x ___, 2017 WL 902136, at *3 (6th Cir. Mar. 7, 2017) (quoting Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994)) (internal quotation marks omitted).
To be entitled to DIB, a claimant must be “under a disability within the meaning of the
Social Security Act.” Sorrell, 656 F. App’x at 168-69 (quoting Rabbers v. Comm’r Soc. Sec.
Admin., 582 F.3d 647, 651 (6th Cir. 2009)). The statute defines disability as the “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).
“To be found disabled, a claimant’s impairments must not only prevent the claimant from doing
her previous work, but they must also render the claimant unable to engage in any other kind of
work that exists in significant numbers in the national economy.” Sorrell, 656 F. App’x at 169
(quoting Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003)) (internal quotation
marks omitted).
The Social Security Administration processes applications for relief by asking
five questions: (1) Does the claimant show she is not engaged in substantial
gainful activity? (2) Does the claimant have a severe impairment? (3) Does the
impairment meet any one of the items on a list of impairments presumed severe
enough to render one disabled? (4) Can the claimant perform her past jobs? (5)
Can the claimant perform other jobs that exist in significant numbers in the
national economy?
Taskila v. Comm’r of Soc. Sec., 819 F.3d 902, 903 (6th Cir. 2016) (internal quotation marks
omitted). Entitlement to DIB requires disability prior to the expiration of the claimant’s insured
status, Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990), which, in this case, was June 30,
2011.

5

ANALYSIS
Mental Impairments.
Jones was referred to Dennis W. Wilson, Ph.D., for a consultative psychological
evaluation, which was conducted on May 3, 2010. She told him that she had repeated the third
grade and left school in the ninth grade because she was pregnant and got married. When asked
why she was incapable of working, Jones responded that her husband, who had suffered a brain
injury after being struck by a train several years earlier, was constantly with her. She explained
that she did not feel sociable and the thought of doing the same thing over and over made her
“want to bawl.” (AR 174.) Plaintiff reported that, if she became “super angry,” she would want
to “drive off of a cliff,” but never had any intention of doing so. (Id.)
Dr. Wilson recorded Jones’s grooming and hygiene as marginal and her intellectual
functioning in the low-average range. He also noted difficulties with attention, concentration
and linear reasoning. Her affect was broad, mood dysthymic, and verbalizations disjointed.
Plaintiff’s social skills and memory were good and she was oriented to person, place, time and
situation.

There was no indication of recurrent, intrusive, obsessive, bizarre or unwanted

thoughts; compulsive behaviors; current suicidal or homicidal ideation; hallucinations or
delusions; or phobic-type reactions. The physician concluded she suffered from depression,
which apparently began as a situational problem resulting from her husband’s accident and
progressed into major depressive disorder due to her stressful life circumstances. With respect to
Jones’s husband, Dr. Wilson noted that she appeared overwhelmed and significantly preoccupied
with his care and condition.

6

Dr. Wilson’s diagnosis was major depressive disorder, recurrent episode, moderate, and
adjustment disorder with both depression and anxiety. He assigned a GAF score of 603 and
opined that she was moderately limited in the ability to sustain concentration and persistence and
interact with others, and mildly limited in understanding, remembering, and adapting to changes
and requirements.
In a psychiatric file review conducted for the purpose of determining Plaintiff’s residual
functional capacity (“RFC”)4 on May 19, 2010, Jenaan Khaleeli, Psy.D. concluded she suffered
from major depressive disorder and adjustment disorder with depression and anxiety. The
physician rated her functional limitations in the areas of maintaining social functioning and
concentration, persistence or pace as moderate; her restrictions of activities of daily living as
mild; and no episodes of decompensation. It was determined by Dr. Khaleeli that Jones was
moderately limited in her abilities to understand, remember and carry out simple and one- to
three-step detailed instructions; maintain attention and concentration for extended periods;
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; complete a normal workday without interruption from psychologically
based symptoms; interact appropriately with the general public; get along with co-workers and
peers; accept instructions and respond appropriately to supervisor criticism and changes in the
work setting. With respect to Plaintiff’s functional capacity, the reviewer opined that she could
concentrate and persist for at least a two-hour period in an eight-hour workday with customary
breaks and adapt to infrequent change.

3

A GAF (Global Assessment of Functioning) score represents a “subjective evaluation of
a claimant’s overall functional ability.” Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468,
470 n.1 (6th Cir. 2016).
4

An RFC is defined in the regulations as “the most [a claimant] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1).
7

On Social Security Administration function reports completed by the Plaintiff in April
and June of 2010, she reported having trouble concentrating because of her husband, being
“stressed all the time” (id. at 128), and disliking change. She further indicated that she did not
need to be reminded to do things; that she would “listen to what I only want to hear,” but would
do what was asked of her (id. at 150); and that she could pay attention if she was interested. She
stated therein that, on a regular day, she dressed and fed her husband, cleaned house for two
hours, ran errands and watched television. She reported driving a car; shopping for groceries,
clothing and medication for her husband twice weekly; paying bills; using a checkbook; handling
a bank account; doing laundry; cleaning floors; washing dishes and mowing the yard. On the
form dated June 23, 2010, Jones stated, “I’m not one of those persons that has something wrong
with them all the time,” adding that a hysterectomy and getting her “nerves to straighten up”
would resolve her issues. (Id. at 152.) During a consultative medical examination performed on
July 27, 2010, Robert Sanner, M.D., noted that, while she gave “inappropriate” answers to
questions concerning her physical condition, her intellectual functioning “was apparently
normal.” (Id. at 200.)
On December 13, 2010, the claimant presented to the Tennessee Department of Health,
complaining of depression, nervousness and anxiety. She was referred to Pathways, a behavioral
health services agency. In an initial assessment form dated December 29, 2010, Pathways
personnel documented depressed mood, poor sleep, thoughts of guilt, and family and financial
stressors. All other aspects of her mental status were listed as normal, average or appropriate.
The assessment also indicated ability to express needs, good physical health, independence in
activities of daily living, good verbal skills and potential for employment and/or school. Her
functioning with respect to activities of daily living and interpersonal relationships was

8

categorized as “moderate,” with notations that she was withdrawn and had little support.5
General symptoms, which had worsened over the previous year, included, in addition to those
listed above, anger, crying spells, frequent upset, mood swings, restlessness, agitation, lack of
energy and enjoyment, weight gain, panic attacks and excessive worry.

The assessment

contained a diagnosis of major depressive disorder, a GAF score of 45,6 and assignment to the
consumer group numbered one, which includes those persons who are “recently severely
impaired” and whose impairment “totals six months or longer of the past year” in duration. (Id.
at 222.)
The record contains treatment notes from Pathways spanning a period from February to
October 2011. Jones was prescribed Celexa on February 2, 2011, and reported in April 2011 that
it was not working. She was then prescribed Prozac. Shortly thereafter, she was taken off these
medications and prescribed Abilify and Klonopin, followed by Geodon, which she advised was
“really helping,” resulting in “less agitation” and “less emotional reactivity” (Id. at 255). In June
2011, Plaintiff was “doing better” and in August was “fine.” (Id. at 243, 249.) Her GAF scores
throughout her treatment at Pathways ranged from 47 to 49. Notes reflected good to fair sleep
quality and appetite; neat appearance; appropriate hygiene and speech; and anxious, depressed or
labile mood. Thoughts were characterized as appropriate or “circumstantial.”
Jones contends that the ALJ’s failure to discuss her GAF scores and complete Pathways
records, specifically those favorable to her claim, constituted error. It is well settled that “an

5

In her brief, Jones twice advises the Court that the Pathways assessment form indicated
she was “disabled” and “did not want to be left alone.” (D.E. 11 at PageID 347, 351.) This is a
misstatement of the administrative record. Although the quoted language does appear at the
page cited, it falls next to a circled “H,” which throughout the notes refers not to the Plaintiff
herself but to her husband.
6

A GAF score of 41-50 “reflects the assessor’s opinion that the subject has serious
symptoms or serious impairment of social or occupational functioning.” Miller, 811 F.3d at 832.
9

ALJ can consider all the evidence without directly addressing in [her] written decision every
piece of evidence submitted by a party.” Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496,
508 (6th Cir. 2006) (per curiam) (quoting Loral Defense Sys.-Akron v. N.L.R.B., 200 F.3d 436,
453 (6th Cir. 1999)). The ALJ observed in her opinion that, although the Pathways records
indicated depression and anxiety, they also reflected an ability to express personal needs, good
verbal skills, independence in daily activities, intact memory, good sleep and appetite, good
judgment and normal mood and affect. Her characterization of the records may not have been
the only possible interpretation, but neither was it an unreasonable one. The ALJ properly
considered the materials from Pathways, weighed the evidence and resolved any conflicts
therein. Considering the record as a whole, her decision that Jones’s mental impairments were
not disabling was supported by substantial evidence. See Jackson v. Comm’r of Soc. Sec., Case
No. 1:16-CV-236, 2016 WL 7009784, at *5 (W.D. Mich. Dec. 1, 2016) (“Arguments that an
ALJ mischaracterized or ‘cherry picked’ the administrative record are frequently made and
seldom successful, because the same process can be described more neutrally as weighing the
evidence.”); Albanna v. Comm’r of Soc. Sec., Civil Action No. 15-cv-14264, 2016 WL 7238925,
at *12 (E.D. Mich. Nov. 22, 2016) (“Arguments which in actuality require re-weighing record
evidence beseech district courts to perform a forbidden ritual.”), report & recommendation
adopted by 2016 WL 7210715 (E.D. Mich. Dec. 13, 2016).
The ALJ’s failure to discuss Plaintiff’s GAF scores is also not erroneous. A GAF score
“is isolated to a relatively brief period in time, rather than being significantly probative of a
person’s ability to perform mental work activities on a full-time basis.” Dunkle v. Comm’r of
Soc. Sec., Civil Action 2:16-cv-240, 2017 WL 815103, at *9 (S.D. Ohio Mar. 2, 2017).
Accordingly, the Sixth Circuit has observed that “the Commissioner has declined to endorse the

10

GAF score for use in the Social Security and Supplemental Security Income disability programs,
and has indicated that GAF scores have no direct correlation to the severity requirements of the
mental disorders listings.” Hernandez, 644 F. App’x at 470 n.1 (quoting DeBoard v. Comm’r of
Soc. Sec., 211 F. App’x 411, 415 (6th Cir. 2006)). While the scores may be useful in assisting
the ALJ to formulate the RFC, they are not necessary to an ALJ’s analysis of a claimant’s mental
functioning. See Miller, 811 F.3d at 835-36; Edwards v. Comm’r of Soc. Sec., Case No. 1511560, 2017 WL 708744, at *6 (E.D. Mich. Jan. 31, 2017), report & recommendation adopted
by 2017 WL 697026 (E.D. Mich. Feb. 22, 2017); see also Kornecky, 167 F. App’x 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.”).
Plaintiff further claims the ALJ particularly ignored evidence from Pathways notes and
Dr. Wilson that she suffered difficulties with attention and concentration. As noted above, the
ALJ must determine whether the claimant’s impairments “meet any one of the items on a list of
impairments presumed severe enough to render one disabled[.]” Taskila, 819 F.3d at 903
(internal quotation marks omitted). “The disability-qualifying impairment listings at step 3 are
descriptions of various physical and mental illnesses and abnormalities defined in terms of
several specific medical signs, symptoms, or laboratory test results.” Bowman v. Comm’r of Soc.
Sec., ___ F. App’x ___, 2017 WL 1065553, at *4 (6th Cir. Mar. 21, 2017) (internal alterations &
quotation marks omitted).

If a claimant satisfies the requirements of a listing, she is

automatically entitled to benefits without further inquiry.

Id.

When she alleges that her

impairments “meet or equal a listed impairment, [s]he must present specific medical findings to
satisfy the criteria of the particular listing.” Id. “It is a claimant’s burden at the third step of the

11

evaluation process to provide evidence that she meets or equals a listed impairment.” Blanton v.
Soc. Sec. Admin., 118 F. App’x 3, 6 (6th Cir. 2004).
The ALJ considered whether the severity of Jones’s mental impairments met or equaled
the criteria of Listing 12.04. The Plaintiff does not challenge consideration of this listing.
Impairments for affective disorders under § 12.04 must result in at least two of the following:
(1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social
functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4)
repeated episodes of decompensation, each of extended duration. 20 C.F.R. Part 404, Subpart P,
App. 1, § 12.04(B); Bowman, 2017 WL 1065553, at *4. “Marked” for purposes of the listing
“means more than moderate but less than extreme.” 20 C.F.R. Part 404, Subpart P, App. 1, §
12.00C; Bowman, 2017 WL 1065553, at *4.
The Plaintiff makes no effort whatever to convince this Court that the requirements for
Listing 12.04 have been met. She has pointed to no evidence in the record of marked restriction
of activities of daily living or of repeated episodes of decompensation with extended duration.
Nor has she offered proof of marked difficulties in maintaining social functioning beyond her
statements that she did not feel like being sociable.
Because Jones has failed to demonstrate marked restriction of activities of daily living,
difficulties in social functioning or repeated episodes of decompensation, even if she could
establish marked deficits in attention and concentration, it would not be sufficient to meet the
listing, as two of the enumerated restrictions are required. In addition, while Dr. Wilson opined
that she had difficulties with attention and concentration, he made no finding that these problems
were marked.

The ALJ discussed the concentration, persistence and pace prong and Dr.

Wilson’s opinion, concluding that Jones’s difficulties were only moderate. In doing so, she

12

noted the claimant was able to name and remember three objects in the office after five minutes,
perform serial threes correctly, accurately spell the word “world” backward, name the president,
provide correct examples of current events, complete paperwork in connection with her disability
claim, and adequately participate in a face-to-face interview with a Social Security field officer.
Accordingly, the ALJ properly considered Plaintiff’s problems with attention and concentration
and her determination is supported by substantial evidence. See Bowman, 2017 WL 1065553, at
*4-5 (where claimant lacked the requisite impairment-related limitations of Listing 12.04(B),
ALJ’s denial of benefits on that basis would not be overturned).
After finding that Jones’s mental impairments did not meet the severity of Listing 12.04,
the ALJ went on to conclude she had the RFC to perform medium work, limited to “simple,
routine tasks with no exposure to the public and occasional changes in the work environment.”
(AR 21.)

Proceeding to steps four and five of the sequential analysis, the ALJ posed a

hypothetical to the VE consistent with her RFC determination, resulting in a finding that Plaintiff
was not disabled. This determination was also reasonable and supported by substantial evidence
in the record, including Dr. Khaleeli’s opinion and the claimant’s own daily activity reports of
dressing and feeding her husband, cleaning house, running errands, frequently shopping, driving
a car, paying bills, using a checkbook and handling a bank account.
Physical Limitations.
This assignment of error focuses on the “great weight” accorded by the ALJ to the
November 16, 2010, assessment of non-examining state agency medical consultant Nathaniel D.
Robinson, M.D., that Jones could occasionally lift and/or carry fifty pounds; frequently lift
and/or carry twenty-five pounds; stand and/or walk six hours in an eight-hour workday; sit for
six hours in an eight-hour workday; and frequently climb, balance, stoop, kneel, crouch and

13

crawl. Dr. Robinson further opined that the claimant was unlimited in her abilities to push and
pull, and had no manipulative, visual, communicative or environmental limitations. Under the
heading of “symptoms,” he noted that “[t]he claimant has good musculoskeletal function” and
her complaints “appear partially credible.” (Id. at 210.) It was his conclusion that Jones suffered
from a severe impairment that fell short of the listings.
In the early fall of 2011, nearly a year after Dr. Robinson provided his opinion, the
Plaintiff underwent surgeries for extensive DVT in the left leg.7 At a follow-up appointment
shortly thereafter, James Gebhart, D.O., documented “some” continuing leg pain, “some” edema,
but “[m]uch better control[].” (Id. at 288.) She was advised to keep the leg elevated and stop
smoking.
State agency medical consultants such as Dr. Robinson “are highly qualified physicians
and psychologists who are experts in the evaluation of the medical issues in disability claims
under the Social Security Act[.]” Gibbens v. Comm’r of Soc. Sec., 659 F. App’x 238, 247 (6th
Cir. 2016) (internal alterations & quotation marks omitted).

Determinations by consulting

physicians are more likely upheld “when the consultant conducts an in-person examination rather
than formulating an opinion based solely on a review of the medical record.” Id. at 247-48.
“Where a non-examining source did not review a complete case record, [courts are to] require
some indication that the ALJ at least considered these facts before giving greater weight.” Id. at
248 (internal quotation marks omitted).
The ALJ, while acknowledging that Dr. Robinson did not examine the Plaintiff, noted
that he “provided specific reasons for [his] opinion[] about the claimant’s residual functional
capacity reflecting that [it was] grounded in the evidence in the case record, including careful
7

It appears from the record that two procedures were performed, one in September and
another in October 2011.
14

consideration of the claimant’s allegations about her symptoms and limitations.” (AR 20.) She
also stated that evidence received into the record after the issuance of his opinion did not provide
any information that would have significantly altered it, and that there was no justification for
any postural limitation.

Plaintiff contends that, as Dr. Robinson did not have the records

concerning her diagnosis of DVT before him and, thus, failed to account for any additional
limitations arising from that impairment, the ALJ’s assignment of weight to his assessment was
erroneous. She further posits that the ALJ failed to explain her finding with respect to postural
limitations.
The ALJ noted in her opinion that there was no evidence in the record of treatment for
DVT prior to September 2011, a finding the Plaintiff does not challenge. She further concluded
the DVT did not satisfy the definition of a “disability” under the Social Security regulations as
there was nothing to suggest it was a “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.” 20 C.F.R. § 404.1505(a). Jones does not take
issue with this conclusion either. The ALJ pointed out that Jones’s condition was much better
controlled after treatment and that, despite the fact smoking was a risk factor for DVT, Plaintiff
continued to smoke one pack of cigarettes per day.8

8

As the Sixth Circuit recognized in Sias v. Secretary of Health & Human Services, 861
F.2d 475, 480 (6th Cir. 1988) (per curiam),
[t]he Social Security Act did not repeal the principle of individual responsibility.
Each of us faces myriads of choices in life, and the choices we make, whether we
like it or not, have consequences. If the claimant in this case chooses to drive
[herself] to an early grave, that is [her] privilege –– but if [s]he is not truly
disabled, [s]he has no right to require those who pay social security taxes to help
underwrite the cost of [her] ride.
15

The Plaintiff has offered nothing to convince the Court the ALJ erred. The ALJ noted
that new information was presented after Dr. Robinson issued his opinion and properly
considered the effect of that new evidence. While the Plaintiff insists that the record documents
leg pain and edema, she leaves out the fact that the same record reflects much better control after
treatment.
In addition, “[e]vidence of disability obtained after the expiration of insured status is
generally of little probative value.” Strong v. Soc. Sec. Admin., 88 F. App’x 841, 845 (6th Cir.
2004); see also Petty v. Comm’r of Soc. Sec., Case No. 1:14-cv-01066-STA-dkv, 2017 WL
396791, at *3 (W.D. Tenn. Jan. 30, 2017) (“Evidence generated after the expiration of insured
status and which does not relate to the claimant’s condition on the date last insured is not
relevant.”). There is no evidence in the record to reflect that Plaintiff suffered from DVT during
the relevant period. Dr. Sanner, in his July 2010 physical examination, noted strength of 5/5 in
all major muscle groups and normal range of motion, including at the hips, knees and ankles,
with no tenderness, redness, swelling, spasm, joint enlargement, muscle wasting, cyanosis,
clubbing or edema. He also recorded normal gait and mobility and that Jones got up and out of a
chair and on and off the examining table without difficulty. This evidence during the relevant
period, as well as the 2010 functional reports of the Plaintiff that she cleaned house for two hours
and mowed the yard, supports the ALJ’s determination that Jones could perform medium work.
The Court finds that substantial evidence supports the ALJ’s reliance on Dr. Robinson’s
assessment.
The mere fact that the ALJ considered the DVT to be “severe” does not mandate a
finding of disability or change the Court’s conclusion, as “[a] claimant’s severe impairment may
or may not affect his or her functional capacity to do work. One does not necessarily establish

16

the other.”

Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th Cir. 2007).

Furthermore, to the extent Plaintiff’s assertion with respect to postural limitations goes beyond
her DVT, she points to no evidence in the record to establish that the ALJ’s finding was
erroneous.
Obesity.
“Obesity is a complex, chronic disease characterized by excessive accumulation of body
fat.” SSR 02-1p, 2002 WL 34686281, at *2 (Sept. 12, 2002); Shilo v. Comm’r of Soc. Sec., 600
F. App’x 956, 959 (6th Cir. 2015). Social Security Ruling 02-1p requires the ALJ to consider a
claimant’s obesity at steps two through five of the sequential analysis. 2002 WL 34686281, at
*3; Miller, 811 F.3d at 834-35. “The ruling does not mandate a particular mode of analysis, but
it directs an ALJ to consider the claimant’s obesity, in combination with other impairments, at all
stages of the sequential evaluation.” Miller, 811 F.3d at 835 (internal quotation marks omitted).
The Centers for Disease Control has advised that an individual is considered obese if her
body mass index (“BMI”) exceeds 30. www.cdc.gov/obesity/adult/defining.html (last visited
Mar. 30, 2017). Jones’s height is listed in the record as five feet seven inches.9 From July 2010
through July 2011, her weight fluctuated from 190 to 194.6 pounds, reflecting a BMI that ranged
from 29.8 to 30.5.10 While the claimant was technically obese at some points, she did not
identify obesity as an impairment in paperwork submitted in support of her claim for disability
benefits. More importantly, she proffered no evidence from a physician characterizing her as

9

Notes from an April 27, 2011, examination at the Tennessee Department of Health
reflect a height of five feet ten inches. This appears to be incorrect, as the remainder of the
record consistently shows a height of five feet seven inches. Moreover, the Plaintiff appears to
concede in her brief that her height is five feet seven inches.
10

The BMIs used herein are based on the BMI calculator posted on the United States
Department of Health and Human Services National Heart, Lung and Blood Institute’s website.
See www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm (last visited Mar. 7, 2017).
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obese or opining that her weight imposed additional limitations on her ability to perform work or
made her other conditions worse. The ALJ consequently had no evidence before her to consider
regarding obesity. See Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011)
(where plaintiff did not put her obesity at issue before the Commissioner, did not list it as an
impairment, and offered no medical records or opinions describing her as obese or finding that
obesity exacerbated her conditions, ALJ’s failure to consider her obesity was not error).
CONCLUSION
For the reasons articulated herein, the Commissioner’s determination will be
AFFIRMED. A separate judgment shall issue.
IT IS SO ORDERED this 30th day of March 2017.
s/ J. DANIEL BREEN
SENIOR UNITED STATES DISTRICT JUDGE

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