Davis v. Commissioner of Social Security
ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Judge S. Thomas Anderson on 1/30/2017. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
Case No: 1:14-cv-01036-STA-egb
ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
Plaintiff Danny Davis 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 (“the 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 August 8, 2012. On September
27, 2012, 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
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
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
Plaintiff was born on May 15, 1950.8 He alleges disability due to diabetes, kidney
problems, neuropathy, heart problems, gastroesophageal reflux disease, anemia, three leaking
42 U.S.C. § 405(g).
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).
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S.
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)).
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).
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
(R. 73, ECF No. 8.)
valves, tinnitus, and high blood pressure beginning January 1, 2010.9
Plaintiff obtained a
Bachelor’s Degree in Business and has previous work experience as a manager for
environmental health and safety.10
The ALJ made the following findings: (1) Plaintiff met the insured status requirements
through December 31, 2013; (2) Plaintiff has not engaged in substantial gainful activity since the
alleged onset date; (3) Plaintiff has the following severe impairments: obesity, stage III chronic
kidney disease probably secondary to diabetic nephropathy and/or hypertensive nephrosclerosis,
diabetes mellitus (controlled) with peripheral neuropathy, hypertension (controlled), chronic
anemia, gastroesophageal reflux disease (“GERD”), acolasia, mild cardiomegaly without chronic
heart failure, and tinnitus with bilateral hearing loss; 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 perform medium work as defined in 20 C.F.R § 404.1567(c)
except he can sit up to six hours, but only three hours at a time; stand up to four hours, but one
hour at a time; and walk up to two hours, but one hour at a time; he can frequently use foot
controls and perform all postural activates; he cannot work around very loud noise; he can be
exposed to frequent temperature extremes; he cannot read very small print but can read regular
print and on a computer screen; (5) Plaintiff is able to perform his past relevant work as a
manager for environmental health and safety; (6) Plaintiff was not under a disability as defined
in the Act at any time through the date of this decision.11
(Id. at 55, 171, 203.)
(Id. at 204, 505.)
(Id. at 57-62.)
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.12 The claimant bears the ultimate burden of establishing an entitlement to benefits.13
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
demonstrate the existence of available employment compatible with the claimant’s disability and
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
4. An individual who can perform work that he has done in the past will not be found to
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.15
Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.16 Here, the sequential analysis proceeded to the fourth step
42 U.S.C. § 423(d)(1).
Born v. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir. 1990).
Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).
with a finding that Plaintiff can perform his past relevant work. The Court finds that substantial
evidence supports this determination.
Initially, Plaintiff seeks a remand under sentence six of 42 U.S.C. § 405(g) based on
evidence he submitted to the Appeals Council that was not before the ALJ. Plaintiff contends
that this evidence showed that his blood glucose and blood pressure were worsening, which
would contradict the ALJ’s findings that these conditions were controlled. The records are dated
between December 2012 and August 2013, after the ALJ’s decision.17
A court may consider evidence submitted to the Appeals Council only to determine
whether the evidence satisfies the criteria for remand under sentence six of 42 U.S.C. § 405(g).18
Thus, evidence submitted after the ALJ’s decision cannot be considered part of the record for
purposes of a substantial evidence review. “To obtain a sentence-six remand, a claimant has the
burden to establish that there is (1) new evidence; (2) which is material; and (3) that there is good
cause for the failure to submit it to the ALJ.”19 The Sixth Circuit has explained that “evidence is
new only if it was not in existence or available to the claimant at the time of the administrative
proceeding.”20 Such evidence is deemed “material” if “there is a probability that the
[Commissioner] would have reached a different disposition of the disability claim if presented
20 C.F.R. § 404.1520(a).
(R. 8, 26, ECF No. 8.)
See Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010). It is not clear from
Plaintiff’s brief whether he actually seeks a sentence six remand or whether he is asking this
Court to substantively consider the evidence he submitted to the Appeals Council. But, as noted,
this Court may only consider the evidence to determine if Plaintiff is entitled to a remand.
Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 717 (6th Cir. 2013) (citation omitted).
Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483-84 (6th Cir. 2006) (citation omitted).
with new evidence.”21 The additional evidence must also be time-relevant; that is, it must relate
to the period on or before the date the ALJ rendered a decision.22
In this case, the reports in question do not establish how the findings contained therein
translate into functional limitations that would have impacted the ALJ’s residual functional
capacity determination, and they lack relevant information as to Plaintiff’s symptomatology
concerning his alleged disabling limitations. Moreover, the evidence concerns a time after the
ALJ’s decision and, thus, does not affect the decision about whether Plaintiff was disabled on or
before January 17, 2010.23
Consequently, Plaintiff’s argument that this matter should be
remanded for consideration of the evidence presented to the Appeals Council fails.
Next, Plaintiff argues that the ALJ should have found hip pain, back pain, shortness of
breath, and chronic fatigue as additional severe impairments at step two. Plaintiff, however, has
not pointed to evidence indicating that the ALJ’s residual functional capacity limitations
overlooked any impairments resulting from these conditions.
The ALJ agreed that Plaintiff had severe impairments, several of which required the ALJ
to address Plaintiff’s functionality in the body systems not found to be severe. For instance, the
ALJ considered Plaintiff’s strength complaints, his ability to move around doctors’ office,
Desantis v. Comm’r of Soc. Sec., 24 F. Supp. 3d 701, 709 (S.D. Ohio 2014) (quoting Huffer v.
Heckler, 591 F. Supp. 626 (S.D. Ohio 1984) (“[R]emand to the SSA for consideration of new
evidence is appropriate when there is a reasonable possibility that consideration of the offered
evidence would have resulted in a different determination.”)).
See Wyatt v. Sec. of Health and Human Servs., 974 F.2d 680, 685 (6th Cir. 1992) (finding that
evidence of a subsequent deterioration or change in condition after the administrative hearing is
See Wyatt, 974 F.2d at 685; see also Strong v. Comm’r of Soc. Sec., 88 F. App’x 841, 845 (6th
Cir. 2004) (“Evidence of disability obtained after the expiration of insured status is generally of
little probative value.”).
activities of daily living, work history and other factors. As long as the ALJ considers all of an
individual’s impairments, the “failure to find additional severe impairments . . . does not
constitute reversible error.”24
The ALJ found Plaintiff’s back, hip, and shoulder problems non-severe, in part, because
Plaintiff had not had any treatment, and Plaintiff cites no evidence to contradict that
conclusion.25 Plaintiff also cites no evidence showing impairments related to shortness of breath
or chronic fatigue. As the ALJ pointed out, Plaintiff told his doctors that iron tablets helped with
As for shortness of breath, chest x-rays and an echocardiogram were normal.27
Moreover, Plaintiff denied shortness of breath during examinations in April and May 2011.28
Plaintiff claims that it was the Commissioner’s responsibility to obtain his records from
prior to his alleged onset date. Even if those records were relevant, Plaintiff bears the burden to
Kirkland v. Comm’r of Soc. Sec., 528 F. App’x 425, 427 (6th Cir. 2013) (quoting Fisk v.
Astrue, 253 F. App’x 580, 583 (6th Cir. 2007)).
(R. 57.) See Curler v. Comm’r of Soc. Sec., 2014 WL 1282521 *8, (6th Cir. April 1, 2014)
(“Had Curler suffered from severe pain associated with her back condition, the medical records
would have revealed severe back or leg abnormalities, abnormal functioning on physical exams,
recommendations for more aggressive treatment, and more significant doctor-recommended
(R. 60, 221, 510, ECF No. 8.)
(Id. at 35, 83, 239, 303, 310.)
(Id. at 510, 521, 559.)
provide evidence of limitations, not the Commissioner.29 That is especially true when, as in the
present case, Plaintiff was represented by counsel.30
As noted above, the initial burden of going forward is on Plaintiff to show that he is
disabled from engaging in his former employment; once he makes that showing, the burden of
going forward shifts to the Commissioner to demonstrate the existence of available employment
compatible with the claimant’s disability and background.31 Accordingly, it is Plaintiff’s burden
to prove that he has disabling limitations, not the ALJ’s. The mere fact that Plaintiff has a
diagnosis or diagnoses does not mean that he has disabling limitations because a diagnosis, in
and of itself, “says nothing about the severity of the condition.”32 Instead, the ALJ must consider
the actual work-related impact of those diagnoses.
Plaintiff complains of the ALJ’s credibility determination. In particular, Plaintiff argues
that the ALJ did not give specific reasons for finding his complaints less than fully credible but,
instead, provided “standard, boilerplate language” in the decision.
A claimant’s credibility comes into question when his “complaints regarding symptoms,
or their intensity and persistence, are not supported by objective medical evidence.33 “To assess
credibility, the ALJ must consider “the entire case record,” including “any medical signs and lab
See Watters v. Comm’r of Soc. Sec., 530 F. App’x 419, 425 (6th Cir. 2013) (“[T]his court has
consistently affirmed that the claimant bears the burden of producing sufficient evidence to show
the existence of a disability.”) (citations omitted)).
See Culp v. Commissioner of Social Sec., 529 F. App’x 750, 751 (6th Cir. 2013) (recognizing
no “special duty to develop the record” when an individual is represented by counsel).
Born, 923 F.2d at 1173.
Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (stating that a diagnosable impairment is
not necessarily disabling) (citation omitted)).
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).
findings, the claimant’s own complaints of symptoms, any information provided by the treating
physicians and others, as well as any other relevant evidence contained in the record.”34 This
Court is required to “accord the ALJ’s determinations of credibility great weight and deference
particularly since the ALJ has the opportunity, which we do not, of observing a witness’s
demeanor while testifying.”35 However, the ALJ’s credibility finding “must find support in the
The Sixth Circuit recently reiterated that the “chief concern” with using a “template” or
“boilerplate” language when assessing a claimant’s credibility “is the risk that an ALJ will
mistakenly believe it sufficient to explain a credibility finding, as opposed to merely introducing
or summarizing one.”37 However, as in the present case, “usage of the template to introduce the
ALJ’s credibility finding is not by itself erroneous” as long as the ALJ provides “an adequate
explanation of the adverse credibility finding.”38
Here, the Court finds no error in the ALJ’s credibility determination because Plaintiff did
not provide objective medical evidence to establish the intensity and persistence of his alleged
symptoms, and the record as a whole does not indicate that his condition was of disabling
Although Plaintiff presented objective medical evidence of underlying medical
conditions and the ALJ found that these impairments could reasonably cause the kind of
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (citations omitted).
Sorrell v. Comm’r of Soc. Sec., 2016 WL 4245467 (6th Cir. Aug. 11, 2016) (quoting Cox v.
Comm’r of Soc. Sec., 615 F. App’x 254, 260 (6th Cir. 2015)).
limitations as alleged by Plaintiff, the ALJ also found that Plaintiff’s statements about the
intensity, persistence, and limiting effect of his alleged symptoms were not entirely credible
because they were inconsistent with the evidence of record.39
The ALJ looked at Plaintiff’s treatment history which contained few indications of
symptoms as severe as Plaintiff alleged. For example, Plaintiff’s clinical examinations were
essentially normal, with normal strength, normal reflexes, and normal gait.40
Plaintiff’s impairments, including diabetes and hypertension, were controlled with medication.41
In making her decision, the ALJ relied on a medical opinion from consultative examiner,
Stephen K. Goewey, M.D., who stated Plaintiff could lift fifty pounds frequently, and
sit/stand/walk during the course of a workday.42 The ALJ also noted that Plaintiff did not leave
his last job due to his alleged limitations but because he had been laid off.43 Additionally,
Plaintiff engaged in daily activities inconsistent with disability, including going to church several
times per week, fishing, eating out, feeding his cows in good weather, and doing household
See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529(c) (stating that an ALJ is required to
analyze the intensity and persistence of the claimant’s symptoms if there is objective evidence of
a medical condition that could reasonably cause the alleged impairments).
(R. 60, 504-05, 523-24, ECF No. 8.)
(Id. at 61, 524.)
(Id. at 525-26.)
(Id. at 61, 203.)
(Id. at 213-19, 505.) See Temples v. Comm’r of Soc. Sec., 515 F. App’x 460, 462 (6th Cir.
2013) (finding that the ALJ properly considered daily activities in assessing credibility).
Finally, Plaintiff argues that the ALJ should have assigned controlling weight to a
medical source statement form completed by his treating physician, Mohammed Yousef, M.D.45
Dr. Yousef opined that Plaintiff could lift no more than ten pounds, could walk/stand two hours
per day, and needed to alternate sitting and standing, in addition to other postural, handling, and
safety restrictions.46 Dr. Yousef stated that Plaintiff had back pain related to a long-ago injury,
shoulder pain, diabetic neuropathy, and difficulty walking.47
Dr. Yousef also opined that
Plaintiff was unable to perform work in any job due to his limitations.48
The regulations require that if the opinion of the claimant's treating physician is ‘“wellsupported by medically acceptable clinical and laboratory diagnostic techniques’ and [is] ‘not
inconsistent with the other substantial evidence in [the] case record,’” it must be given
“controlling weight.”49 “If the opinion of a treating source is not accorded controlling weight, an
ALJ must apply certain factors-namely, the length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship, supportability of
the opinion, consistency of the opinion with the record as a whole, and the specialization of the
treating source-in determining what weight to give the opinion.”50
Even if the treating
(Id. at 60-62, 577-80.)
(Id. at 577-81.)
(Id. at 578.)
(Id. at 580.)
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 04.1527(d)(2).
Wilson, 378 F.3d at 544 (quoted with approval in Bowen v. Comm’r of Soc. Sec., 478 F.3d
742, 747 (6th Cir. 2007)).
physician’s opinion is not given controlling weight, “there remains a presumption, albeit a
rebuttable one, that the opinion of a treating physician is entitled to great deference.”51
If the treating physician’s opinion is not given controlling weight, the ALJ is required to
provide “good reasons” for discounting it and that rationale must be supported by the evidence in
the record and “must be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reasons for that
Contrary to Plaintiff’s argument, the ALJ gave specific reasons for rejecting Dr. Yousef’s
medical source statement form. As the ALJ pointed out, the opinion was inconsistent with the
record as a whole.53 First, Dr. Goewey’s examination had shown that Dr. Yousef was not correct
in claiming Plaintiff had difficulty walking.54 Dr. Goewey reported Plaintiff’s gait as normal and
that he could balance and squat normally.55 The ALJ also pointed out that, in documents
completed as part of his application, Plaintiff admitted he could walk one mile at a time.56 The
ALJ noted that Dr. Yousef based his opinion on supposed back pain, but, as previously
Rogers, 486 F.3d at 242.
See SSR 96-2p. See also Gayheart v. Commissioner of Social Sec., 710 F.3d 365, 376 (6th
Cir. 2013) (pointing out that this procedural requirement “ensures that the ALJ applies the
treating physician rule and permits meaningful review of the ALJ’s application of the rule”).
See 20 C.F.R § 404.1527(c)(4) (2013) (“[T]he more consistent an opinion is with the record as
a whole, the more weight we will give to that opinion.”).
(R. 578, ECF No. 8.)
(Id. at 523-24.)
(Id. at 62, 217.)
discussed, there are no treatment records showing that Plaintiff ever complained of back pain,
nor any other evidence suggesting that he had medically determinable problem with his back.57
Because the ALJ pointed to a “good reason” to reject Dr. Dr. Yousef’s opinion and
highlighted specific inconsistencies between the opinion and other evidence, the Court finds
Plaintiff’s argument to be without merit.58
At step four of the sequential analysis, the ALJ compares the claimant’s residual
functional capacity with the requirements of the claimant’s past work.59 Past relevant work is,
generally, a job that was performed within the last fifteen years, performed long enough to learn
how to perform the job, and was substantial gainful activity.60 If the past job did not require the
claimant to perform activities in excess of the claimant’s residual functional capacity, the
claimant will be found not disabled.61 A claimant must prove that he is unable to return to her
past relevant work either as he performed that work or as that work is generally performed in the
national economy.62 Plaintiff has failed to carry his burden of proof.
The ALJ found that Plaintiff could perform his past relevant work as a manager for
environmental health and safety and, therefore, was not disabled. He worked long enough to
learn the essential functions of the job, and he performed the work at the substantial gainful
(Id. at 62.)
See Bledsoe v. Barnhart, 165 F. App’x 408, 412 (6th Cir. 2006) (noting that it was sufficient
for the ALJ to find doctor’s opinion was “not well supported by the overall evidence of record
and are inconsistent with other medical evidence of record”).
20 C.F.R. §§ 404.1520(e), 404.1560(b).
20 C.F.R. § 404.1565(a).
20 C.F.R. §§ 404.1520(e), 404.1560(b), 404.1561.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
activity level.63 In comparing Plaintiff’s residual functional capacity with the physical and
mental demands of such work and based on the testimony of a vocational expert that, given
Plaintiff’s residual functional capacity and work history, Plaintiff could perform work as a
manager for environmental health and safety as it is generally performed and as Plaintiff
described it, the ALJ determined that Plaintiff would not be precluded from performing this past
Accordingly, substantial evidence supports the ALJ’s finding that Plaintiff is not
Because substantial evidence supports the ALJ’s determination that Plaintiff was not
disabled, the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: January 30, 2017.
Plaintiff held this position since 2001. (R. 62, ECF No 8.)
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