Todd v. Commissioner of Social Security

Filing 20

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Chief Judge S. Thomas Anderson on 9/1/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JESSICA TODD,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No: 1:14-cv-01141-STA-tmp

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
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Plaintiff Jessica Todd filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying her application for Supplemental Security Income (SSI)
under Title XVI 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 17, 2012. On
February 14, 2013, the ALJ denied the claim.1 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,

1

Pursuant to Acquiescence Rulings 98-3(6) and 98-4(6), Denard v. Sec’y of Health & Human
Servs., 907 F.2d 598 (6th Cir. 1990), and Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th
Cir. 1997), the Commissioner was bound by a prior decision dated July 30, 2010, and, therefore,
only the period after that decision was under consideration in this proceeding.

or reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.”2 The Court’s review is limited to determining whether there is substantial
evidence to support the Commissioner’s decision,3 and whether the correct legal standards were
applied.4
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”5 It is “more than a mere scintilla of evidence, but less than a
preponderance.”6 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.7

When substantial evidence supports the Commissioner’s

determination, it is conclusive, even if substantial evidence also supports the opposite
conclusion.8
Plaintiff was born on November 7, 1976, and alleges that she became disabled beginning
July 31, 2010. In her disability report, she alleged disability due to anxiety attacks, clinical
depression, panic attacks, degenerative disc disease, chronic obstructive pulmonary disease, a
2

42 U.S.C. § 405(g).

3

Id.

4

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).

5

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

6

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)).

7

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).
8

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

pinched nerve in her neck, bone spurs in her neck, carpal tunnel syndrome, and bipolar disorder.
She previously worked as a certified nursing assistant, cashier, parts racker, and assembler.
The ALJ made the following findings: (1) Plaintiff has not engaged in substantial gainful
activity since the application date; (2) Plaintiff has severe impairments of arthritis, carpal tunnel
syndrome, rotator cuff tendonitis and impingement, chronic obstructive pulmonary disease,
degenerative disc disease, hypertension, cervical disc degeneration and radiculopathy, major
depressive disorder, and anxiety disorder; but she 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; (3) Plaintiff retains the residual functional
capacity to lift/carry a maximum of twenty-five pounds occasionally and ten pounds frequently;
she can stand/walk two hours of an eight-hour workday and sit for a total of six hours during the
same workday; she can never climb ladders, ropes, or scaffolds, but she can occasionally climb
stairs, balance, stoop, crouch, kneel, or crawl; she can frequently reach and finger; she should
avoid exposure to vibration and workplace hazards, such as unprotected heights and dangerous
machinery; she should have the option to sit or stand at her discretion; she can perform simple,
routine, repetitive tasks, maintain attention and concentration for two-hour periods, have
occasional interaction with coworkers and supervisors, and adjust to routine workplace hazards;9
(4) Plaintiff is unable to perform her past relevant work; (5) Plaintiff was a younger individual
with a limited education on the application date; (6) transferability of job skills is not material to
the determination of disability because using the Medical-Vocational Rules (“the grids”) as a
framework supports a finding that Plaintiff is not disabled whether or not she has transferable job

9

The ALJ adopted the finding as to Plaintiff’s residual functional capacity from the prior
decision on the ground that there was no significant change in her allegations of symptoms or
pain.
3

skills; (7) 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; (8) Plaintiff was not under a disability as defined in the Act at any time through the
date of this decision.10
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.11 The claimant bears the ultimate burden of establishing an entitlement to benefits.12
The initial burden of going forward is on the claimant to show that he or she is disabled from
engaging in his or her 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 background.13
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 has done in the past will not be found to
be disabled.

10

R. 30 - 38.

11

42 U.S.C. § 423(d)(1).

12

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

13

Id.
4

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.14
Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.15 Here, the sequential analysis proceeded to the fifth step
with a finding that, although Plaintiff cannot perform her past relevant work, there are a
significant number of jobs existing in the national economy that she can perform.
Plaintiff argues that substantial evidence does not support the ALJ’s decision. She
specifically argues that the ALJ erred in the weighing of the medical evidence, in the assessment
of her credibility, and in formulating the residual functional capacity finding.

Plaintiff’s

arguments are not persuasive.
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.”16 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.”17

14

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

15

20 C.F.R. § 404.1520(a).

16

20 C.F.R. § 404.1527(c)(2).

17

Soc. Sec. Rul. 96–2P, 1996 WL 374188 at *3 (July 2, 1996).
5

If an ALJ decides that the opinion of a treating source should not be given controlling
weight, the ALJ must take certain factors into consideration when determining how much weight
to give the opinion, including “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.”18 Any decision denying benefits “must contain specific reasons for the weight given to
the treating source’s medical opinion, supported by the evidence in the case 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 weight.”19
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,20 and an opinion from a
medical source who regularly treats the claimant is afforded more weight than that from a source
who has examined the claimant but does not have an ongoing treatment relationship.21 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.”22 Opinions from
nontreating 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
18

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

19

Soc. Sec. Rul. 96–2P, 1996 WL 374188 at *5 (July 2, 1996).

20

20 C.F.R. § 404.1502, 404.1527(c)(1).

21

Id. § 404.1502, 404.1527(c)(2).

22

Soc. Sec. Rul. No. 96–6p, 1996 WL 374180 at *2.
6

opinion.23 State agency consultants are highly qualified specialists who are also experts in the
Social Security disability programs, and their opinions may be entitled to great weight if the
evidence supports their opinions.24
In the present case, substantial evidence supports the weight given to the medical
evidence and opinions in the record and the evaluation of Plaintiff’s residual functional capacity.
The ALJ properly determined that Plaintiff could perform a reduced range of light work.
Plaintiff argues that the ALJ should have found her disabled based on the opinion of
treating orthopedic physician Alan Pechacek, M.D. Instead of giving Dr. Pechacek’s opinion
controlling weight, the ALJ gave it little weight on the grounds that the opinion was not
supported by Dr. Pechacek’s own treatment notes or by other evidence in the record and because
Plaintiff had not had a significant change in her symptoms since the Commissioner’s earlier
decision.
In a medical source statement form, Dr. Pechacek opined that Plaintiff could lift less than
ten pounds with either arm or hand; she could not push, pull, lift, or carry with her right arm, and
she “would be limited” with the left hand because of pain and “abnormal feeling/sensation.” She
could never climb or crawl due to her inability to use her arms. Plaintiff was limited in reaching,
handling, fingering, and feeling. She could perform reaching, handling, fingering, and feeling
occasionally with the left hand but could not perform these tasks at all with the right arm.

23

20 C.F.R. § 404.1527(c).

24

See 20 C.F.R. § 404.1527(e)(2)(i); Soc. Sec. Rul. 96-6p, 1996 WL 374180, 61 Fed. Reg.
34,466-01 (July 2, 1996).
7

Additionally, Dr. Pechacek opined that cold and/or humidity and vibration could aggravate her
pain and that she might not be able to protect herself from hazardous situations.25
Despite this opinion, Dr. Pechacek’s treatment notes reported Plaintiff as being alert,
cooperative, and in no acute distress. While Plaintiff’s right shoulder had some tenderness and
moderate restriction of motion, Plaintiff’s fingers had good sensation and circulation. Dr.
Pechachek’s treatment notes indicated that Plaintiff had normal strength despite her complaints
of pain. There is no evidence from the treatment notes supporting the extreme limitations in the
use of both hands that Dr. Pechacek mentioned in the medical source treatment form and no
indication that he told Plaintiff that she should limit her activities.
Other evidence cited by the ALJ supported a finding that Plaintiff had significantly
greater ability to use her hands and arms than Dr. Pechacek indicated. Consultative examiner
John B. Woods, M.D., reported that Plaintiff’s musculoskeletal system was completely normal;
Plaintiff had normal muscle strength and range of motion, including in her shoulders, and she did
not have any clinically observable joint problems.26 The ALJ also pointed out that consulting
psychologist William R. Sewell, Ph.D., diagnosed Plaintiff with malingering and “feigning” in
March 2010.27
The Court finds that the ALJ had good reasons to discount Dr. Pechacek’s opinion, and
substantial evidence supports the weighing of his opinion.
Next, Plaintiff complains of the ALJ’s credibility assessment. A claimant’s credibility
comes into question when his or her “complaints regarding symptoms, or their intensity and
25

R. 820-23.

26

R. 693.

27

R. 264.
8

persistence, are not supported by objective medical evidence.”28 To assess credibility, the ALJ
must consider “the entire case record,” including “any medical signs and lab 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.”29 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,”30 although the ALJ’s credibility finding must find support in the
record.
In making the credibility assessment, the ALJ looked at the following. Plaintiff was
treated by Wendy Cran-Carty, M.D., from August 2009 to September 2010.

Plaintiff

complained of extreme pain in her shoulder and neck, but her cervical MRI was essentially
normal. Plaintiff was dismissed from Dr. Cran-Carty’s care because she violated the pain
management agreement.31 As discussed above, Dr. Woods found that, although Plaintiff had
some limited range of motion in her spine, she otherwise had a normal musculoskeletal system,
including normal strength, normal gait, and normal ability to stand up from a chair.32
The ALJ also looked at inconsistencies between Plaintiff’s claimed limitations and
medical evidence. For example, Plaintiff complained of shortness of breath related to chronic
obstructive pulmonary disease, but, when Plaintiff sought treatment in April 2011, her oxygen
28

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).

29

Id.

30

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (citations omitted).

31

R. 374.

32

R. 692-95.
9

saturation was 100 percent, and her chest x-rays revealed only mild findings.33 The ALJ also
pointed out that Plaintiff appeared to have limited range of motion in her back and neck during
testing, but that there was no spinal tenderness, spasms, or muscle wasting consistent with those
limitations.34
As for Plaintiff’s mental capabilities, as noted above, Dr. Sewell opined that Plaintiff was
malingering and feigning mental disorders. When Dr. Sewell administered Plaintiff the “MFAST” test, Plaintiff endorsed “very extreme and uncommon symptoms,” but Plaintiff’s clinical
appearance was inconsistent with the limitations she endorsed.35 Dr. Sewell noted that Plaintiff
was “readily influenced by the evaluator’s suggestion,” that is, she endorsed any symptom
suggested by the doctor. Plaintiff’s exaggeration of her symptoms diminished her credibility.
Despite Plaintiff’s alleged symptoms, Dr. Sewell’s examination revealed no signs of psychotic
processing. Dr. Sewell opined that Plaintiff’s ability to understand and remember, carry out
instructions, and interact with coworkers would not be impaired.36
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 her alleged
symptoms, and the record as a whole does not indicate that her condition was of disabling
severity. Although Plaintiff presented objective medical evidence of an underlying medical
condition and the ALJ found that her impairments could reasonably cause the kind of limitations
alleged by Plaintiff, Plaintiff’s statements about the intensity, persistence, and limiting effect of

33

R. 569.

34

R. 692-94.

35

R. 264.

36

Id.
10

her alleged symptoms were not entirely credible because they were inconsistent with the
evidence of record. The ALJ carefully considered the record as a whole. Accordingly, the ALJ’s
credibility determination is supported by substantial evidence.
Plaintiff additionally argues that it was unfair for the ALJ to find that her residual
functional capacity had not changed from the time of the previous ALJ decision on the ground
that she had submitted evidence showing that her impairments worsened. She also points out
that the current ALJ found that she had several severe impairments - arthritis, rotator cuff
tendonitis/impingement, chronic obstructive pulmonary disease, hypertension, and major
depressive disorder - that were not included at the corresponding step of the previous decision.
She reasons that, since her severe impairments changed, the ALJ should have found her residual
functional capacity had also worsened.
A subsequent ALJ is estopped, on res judicata grounds, from contradicting a prior
determination that a claimant was unable to perform his or her past relevant work.37 “When the
Commissioner has made a final decision concerning a claimant's entitlement to benefits, the
Commissioner is bound by this determination absent changed circumstances.”38 Thus, if an
earlier ALJ makes a finding regarding a claimant’s residual functional capacity, a subsequent
ALJ is bound by that determination absent additional evidence that would support a contrary
finding.39 Those circumstances are not present in this case.
The present ALJ determined that Plaintiff’s complaints had not really changed and that
her treatment history suggested that she did not have any worse problems. The fact that “the two
37

Denard, 907 F.2d at 598–99.

38

Drummond, 126 F.3d at 840–42.

39

See, e.g., Gay v. Comm’r of Soc. Sec., 520 F App’x. 354, 356 (6th Cir. 2013).
11

ALJ’s did make somewhat different findings with regard to the ‘severe’ impairments” was not
crucial to a finding of changed circumstances because the “mere diagnosis of a condition does
not prove its severity and its disabling effects must still be shown.”40 Even though the ALJ’s list
of severe impairments at step two was different than the previous decision, there is no evidence
other than Dr. Pechacek’s opinion, which the ALJ rejected, to show that Plaintiff’s residual
functional capacity had materially changed.
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.41 The
Commissioner may carry this burden by applying the grids42 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.43 The grids take administrative notice of a significant
number of unskilled jobs a claimant can perform given his residual functional capacity.44 Here,
the grids would direct a finding of not disabled for a person of Plaintiff’s age, education, work
history, and residual functional capacity if she could perform the full range of light work.45

40

Howard v. Astrue, 2008 WL 1023908 (E. D. Kentucky, April 9, 2008) (determining that the
ALJ properly adopted the prior decision’s residual functional capacity finding even though the
step two assessment was slightly different).
41

Jones, 336 F.3d at 474.

42

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

43

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).

44

See 20 C.F.R. part 404, subpart p, appendix 2, § 200.00(b); Social Security Ruling 85-15,
1985 WL.

45

See 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 202.21.
12

Because she could only perform a limited range of light work, the ALJ obtained the testimony of
a vocational expert.
Plaintiff argues that the ALJ should have found her disabled because, when asked a
hypothetical question based on Dr. Pecachek’s opinion, the vocational expert testified that
Plaintiff would be disabled.46 Because the ALJ rejected Dr. Pechacek’s opinion, the ALJ was
not required to rely on vocational expert testimony based on that opinion. An ALJ is only
required to incorporate into a hypothetical question those limitations he or she finds credible.47 A
vocational expert’s testimony in response to a hypothetical question that accurately portrays a
claimant’s vocational abilities and limitations provides substantial evidence to meet the
Commissioner’s burden at the fifth step of the sequential evaluation process.48
Finally, Plaintiff contends that the Commissioner failed to show a significant number of
jobs existing in the national economy that she could perform. Based on the vocational expert’s
testimony, the ALJ found that Plaintiff could perform work as a sedentary inspector, with 400
jobs in Tennessee and 15,000 jobs in the national economy, and as a packer, with 500 jobs in
Tennessee and 18,000 jobs in the national economy.49 Thus, there were 900 total jobs in the
state and more than 30,000 jobs in the national economy that Plaintiff could perform.
The Act provides that “work which exists in the national economy means work which
exists in significant numbers either in the region where such individual lives or in several regions

46

R. 51-55, 61-63.

47

See Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993).

48

See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512–13 (6th Cir. 2010).

49

R. 62-63.
13

of the country.”50 “[T]the number of jobs that contributes to the ‘significant number of jobs’
standard looks to the national economy - not just a local area.”51 Courts have refused “to set
forth one special number which is to be the boundary between a ‘significant number’ and an
insignificant number.”52 However, the numbers presented in this case, 900 within the state and
30,000 nationally, have been found to be within the parameters of “a significant number of jobs”
in other cases.53 The Court finds no error in the ALJ’s decision.
Substantial evidence supports the ALJ’s determination that Plaintiff was not disabled, and
the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: September 1, 2017.

50

Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

51

Id.

52

Taskila v. Comm’r of Soc. Sec., 819 F.3d 902, 906 (6th Cir. 2016) (quoting Hall v. Bowen,
837 F.2d 272, 275 (6th Cir. 1988)).
53

See, e.g., Taskila., 819 F.3d at 905 (6,000 jobs nationally significant); Longmire v. Comm’r of
Soc. Sec., 2014 WL 2573953 *3 (W. D. Tenn., June 9, 2014) (750 jobs in the state and 19,050
jobs nationally significant).
14