Singletary v. Commissioner of Social Security

Filing 31

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Chief Judge S. Thomas Anderson on 7/10/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DANNY B. SINGLETARY,

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Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Case No: 1:14-cv-01214-STA-tmp

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
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Plaintiff Danny B. Singletary 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”) and an application for supplemental security income
(“SSI”) benefits based on disability under Title XVI of the Act. Plaintiff’s applications were
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 October 12,
2010. On October 22, 2010, the ALJ denied the claim. The Appeals Council granted the request
for review and remanded for another hearing which was held on February 28, 2013. A second
unfavorable decision was issued on April 18, 2013. The Appeals Council denied the request for
review of this decision. Thus, the April 18, 2013, decision 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

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
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 July 20, 1959. He has a limited education. He previously worked
as a commercial truck driver, a fork lift operator, a river boat crew member, and a general
laborer. In his Disability Report, Plaintiff alleged disability due to COPD, emphysema, a hernia,
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

steel plates in his head, screws in his neck, nerve problems, memory loss, lower stomach pain,
and diarrhea with an onset date of December 1, 2008.
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: disorders of the spine,
hepatitis C, chronic obstructive pulmonary disease, affective mood disorder and anxiety related
disorder; 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 light work
as defined in 20 CFR §§ 404.1567(b) and 416.967(b) except that he that should avoid exposure
to temperature extremes of hot and cold and concentrated exposure to pulmonary irritants; he is
able to carry out simple instructions at work that involves occasional contact with coworkers and
supervisors but no public interaction; (5) Plaintiff is unable to perform his past relevant work; (6)
Plaintiff was defined as a younger individual on the alleged onset date, but subsequently changed
age category to closely approaching advanced age; (7) 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
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.8

8

R. 71 - 84.
3

The Social Security Act defines disability as the inability to engage in substantial gainful
activity.9 The claimant bears the ultimate burden of establishing an entitlement to benefits.10
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.11
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.
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.12
Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.13 Here, the sequential analysis proceeded to the fifth step

9

42 U.S.C. § 423(d)(1).

10

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

11

Id.

12

Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).
4

with a finding that, although Plaintiff cannot perform his past relevant work, there is a substantial
number of jobs 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 in his severity findings at step two of the sequential
process and in the weighing of the medical opinion evidence. Plaintiff’s arguments are not
persuasive.
At step two, a claimant bears the initial burden of proof to demonstrate that he has a
severe impairment which is an impairment or combination of impairments which significantly
limit a claimant’s physical or mental ability to perform basic work activities without regard to
age, education, or work experience.14 In order to meet this burden, the claimant must come
forward with medical signs and findings, established by medically acceptable clinical or
laboratory diagnostic techniques, which show the existence of a medical impairment that results
from anatomical, physiological, or psychological abnormalities which could reasonably be
expected to produce the pain or other symptoms alleged.15

13

20 C.F.R. § 404.1520(a).

14

20 C.F.R. §§ 404.1520, 404.1521, 416.920, 416.921. Basic work activities encompass the
abilities and aptitudes necessary to perform most jobs, such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking;
understanding, performing, and remembering simple instructions; using judgment; responding
appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a
routine work situation. 20 C.F.R. §§ 404.1521, 416.921.
15

42 U.S.C. § 423(d)(5)(A); see also Younan v. Comm’r of Soc. Sec., 2012 WL 5439286 at *8
(E.D. Mich. Aug. 14, 2012) (citing Weckbacher v. Comm’r of Soc. Sec., 2012 WL 2809697 at *9
(S.D. Ohio July 10, 2012)), adopted by 2012 WL 5439280 (E.D. Mich. Nov. 7, 2012) (“In
considering whether a claimant has a severe impairment, an ALJ must not accept unsupported
medical opinions or a claimant’s subjective complaints.”)).
5

The severity requirement is used to screen out claims that are medically groundless.16 An
impairment is not severe if it is a “slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the individual's ability to work,
irrespective of age, education and work experience.”17 Accordingly, if an impairment or
combination of impairments would have no more than a minimal effect on a claimant’s ability to
work, the sequential evaluation process is terminated at step two.18 “Only those claimants with
slight abnormalities that do not significantly limit any ‘basic work activity’ can be denied
benefits without undertaking [a] vocational analysis.”19 The Sixth Circuit Court of Appeals
discussed the severity requirement in Long v. Apfel.20
In Higgs v. Bowen, this court declared that ‘an impairment can be considered not
severe only if it is a slight abnormality that minimally affects work ability
regardless of age, education, and experience.’ Higgs v. Bowen, 880 F.2d 860, 862
(6th Cir. 1988). The Higgs court observed that ‘this lenient interpretation of the
severity requirement in part represents the courts’ response to the Secretary’s
questionable practice in the early 1980s of using the step two regulation to deny
meritorious claims without proper vocational analysis.’ Id. But the court also
recognized that ‘Congress has approved the threshold dismissal of claims
obviously lacking medical merit....’ Id. That is, ‘the severity requirement may still
be employed as an administrative convenience to screen out claims that are
“totally groundless” solely from a medical standpoint.’ Id. at 863. Indeed, the
Higgs court approved of that practice; it affirmed dismissal because the record
contained no objective medical evidence to support Ms. Higgs’s claims of severe
impairment. Particularly relevant to the case at bar, the Higgs court observed.
16

Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“[T]his appeal presents the exceptional
‘totally groundless’ claim properly dismissed on the medical evidence alone. There is nothing in
the objective medical record credibly suggesting that Mrs. Higgs was significantly affected by
any of her impairments on or before June 30, 1979.”)

17

Farris v. Secretary, 773 F.2d 85, 90 (6th Cir. 1985) (quoting Brady v. Heckler, 724 F.2d 914,
920 (11th Cir. 1984)).

18

Id.

19

Bowen v. Yuckert, 482 U.S. 137, 158–59 (1987) (O’Connor, J., concurring).

20

1 F. App’x 326 (6th Cir. 2001).
6

‘The mere diagnosis of [an ailment], of course, says nothing about the severity of
the condition.’ Id. When doctors’ reports contain no information regarding
physical limitations or the intensity, frequency, and duration of pain associated
with a condition, this court has regularly found substantial evidence to support a
finding of no severe impairment. See, e.g., id. (citing cases).
Case law since Higgs confirms this circuit’s practice in that respect. Compare
Maloney v. Apfel, 211 F.3d 1269 (table), No. 99-3081, 2000 WL 420700 at (6th
Cir. 2000) (per curiam) (finding substantial evidence to support denial when
record indicated claimant showed symptoms and was diagnosed with disorder but
did not contain evidence of a disabling impairment that would prevent work); and
Foster v. Secretary of Health & Human Svcs., 899 F.2d 1221 (table). No. 881644, 1990 WL 41835 at *2 (6th Cir. 1990) (per curiam) (finding substantial
evidence to support denial when the claimant produced no evidence regarding the
frequency, intensity, and duration of arthritic pain; the record indicated that he
was no more than slightly or minimally impaired); with Burton v. Apfel, 208 F.3d
212 (table), No. 98-4198. 2000 WL 125853 at *3 (6th Cir. 2000) (reversing
finding of no severe impairment because record contained diagnoses and remarks
from a number of treating physicians and psychologists to the effect that claimant
was ‘unable to work ... due to the complexity of her health problems’ (quoting
physician)); and Childrey v. Chater, 91 F.3d 143 (table). No. 95-1353, 1996 WL
420265 at *2 (6th Cir. 1996) (per curiam) (reversing finding of no severe
impairment because record contained an assessment by a consulting physician
reflecting a variety of mental problems that left her “not yet able to really care for
herself alone,” reports of two other physicians corroborating this, consistent
testimony from the claimant, and no medical evidence to the contrary (quoting
physician)).21
In the present case, the ALJ determined that Plaintiff’s headaches, memory loss and pain,
blurred vision, leg cramps, and lesions on his hands were not severe impairments as defined by
the Act. In making that determination, the ALJ looked at the following evidence.
Diagnostic testing showed there was no intracranial abnormality, no significant
intraorbital abnormality, and Plaintiff’s facial fractures were healing well.22 During the first
month after the incident, Plaintiff went to various emergency rooms with complaints of facial
pain and requested pain medication, but after that there was no evidence of treatment for such

21

Long, 1 F. App’x 326 at 332.

22

R. 476, 647.
7

complaints.23 Although Plaintiff alleged that his vision was blurred, his uncorrected vision was
20/50 in both eyes.24 Computed tomography (CT) studies of the head showed no intracranial or
intraorbital abnormality, and Plaintiff subsequently denied problems with his vision.25 And,
there was no evidence of an underlying chronic condition that would cause persistent leg
cramping.
Plaintiff did not allege skin lesions as a disabling impairment at the hearing or in his
disability report, and there are few records mentioning a skin issue. Donita Keown, M.D., a
consultative examiner, noted “incidental findings of skin lesions” on Plaintiff’s hands.26 Plaintiff
sought treatment for lesions or blisters on his hands only once.27 The ALJ did not err in failing
to evaluate a condition that Plaintiff did not allege to be disabling, and the ALJ’s step two
determination is supported by substantial evidence.
Furthermore, if an individual has at least one severe impairment, as in the present case,
the ALJ must continue through the sequential evaluation process and assess how much work the
individual can still do.28 When making this assessment, the ALJ must “consider limitations and
restrictions imposed by all of the individual’s impairments, even those that are non-severe.”29 In
making the residual functional capacity determination in this case, the ALJ considered all of

23

R. 617, 650.

24

R. 326, 356, 736.

25

R. 663, 813 - 45, 1140, 1188, 1197.

26

R. 735.

27

R. 913.

28

See Kirkland v. Comm’r of Soc. Sec., 528 F. App’x 425, 427 (6th Cir. 2013).

29

Id. (quoting Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007)).
8

Plaintiff’s medically determinable impairments, including those impairments he found to be not
severe as defined by the Act. Thus, Plaintiff’s step two argument fails.
Plaintiff also argues that the ALJ failed to properly weigh the medical source opinions.
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.”30

The term “not inconsistent” is meant to convey that “a well-

supported 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.”31
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.”32 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

30

20 C.F.R. § 404.1527(c)(2).

31

Soc. Sec. Rul. 96–2P.

32

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
9

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.”33
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,34 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.35 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.”36 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 opinion.37 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.38
Plaintiff’s primary care physician, Mohammad Yousuf, M.D., completed a questionnaire
in which he opined that Plaintiff was extremely limited in his ability to perform any type of work
activities. The ALJ considered Dr. Yousuf’s opinion but found that it was not supported by his
33

Soc. Sec. Rul. 96–2P.

34

20 C.F.R. § 404.1502, 404.1527(c)(1).

35

Id. § 404.1502, 404.1527(c)(2).

36

Soc. Sec. Rul. No. 96–6p at *2.

37

20 C.F.R. § 404.1527(c).

38

See 20 C.F.R. § 404.1527(e)(2)(i).
10

own treatment notes, nor by the other evidence of record. While Dr. Yousuf saw Plaintiff
regularly through 2010 for medication refills, the office visit notes do not include
contemporaneous observations or objective testing to support the opinion.39 State agency
reviewing physician Marvin Cohn, M.D., commented that Dr. Yousuf’s office visit notes
consisted of a single word or checkmarks and did not convey objective findings or impressions
clearly.40
Dr. Yousuf’s opinion that Plaintiff could only lift one to five pounds was contradicted by
Plaintiff’s own statements that he could lift between ten and thirty pounds.41 Plaintiff stated that
he performed daily activities such as preparing meals, performing household chores, and playing
video games, which required fine manipulation.42 Plaintiff also engaged in activities such as
changing a tire and burning yard waste.43
Diagnostic testing showed only that Plaintiff had a remote history of cervical fusion that
did not prohibit him from returning to work and mild degenerative changes in the lumbar spine.44
Cervical spine x-rays taken during the relevant period showed evidence of the prior fusion and
degenerative disc disease but were otherwise normal.45 Other treating clinicians consistently
described normal neurological findings.46

39

R. 492-99, 749-59.

40

R. 778.

41

R. 117, 326, 358.

42

R. 321-25, 353-357, 707-08.

43

R. 820, 1007-09.

44

R. 81, 735, 767.

45

R. 802.
11

At the consultative examination with Donita Keown, M.D., Plaintiff demonstrated a brisk
gait that was unremarkable; he was able to change from sitting to standing without difficulty;
there were no neurological deficits; he exhibited full strength, good range of motion; straight leg
raise testing was negative; and he complained of discomfort only with manipulation of the left
shoulder.47 Dr. Keown opined that Plaintiff had mild degenerative disc disease without any
evidence of disc herniation, encroachment of neural elements or central stenosis, hepatitis C by
history with no evidence of end-stage liver disease or portal hypertension, and mild COPD;
Plaintiff was capable of sitting eight hours in an eight-hour work day, as well as standing or
walking eight hours in an eight-hour work day, and could lift and carry without restriction.48 The
ALJ gave considerable weight to Dr. Keown’s opinion because it was well supported by the
objective evidence of record, including both her own examination of Plaintiff and the record as a
whole.
The ALJ gave no weight to the opinion of physician’s assistant Kirsten Sass that Plaintiff
was “unable to maintain gainful employment.”49 PA Sass did not include any specific functional
limitations caused by Plaintiff’s impairments or cite to any objective findings to support her
opinion. Furthermore, it appears that Plaintiff asked PA Sass to write a letter stating “unable to
maintain gainful employment.”50 On the date that Plaintiff asked her to write the letter, he

46

R. 617, 662-63, 808, 814, 821, 840-51, 944, 1107, 1163.

47

R. 736-37.

48

R. 738.

49

R. 1161.

50

R. 1201.
12

denied shortness of breath, fatigue, cervical pain, and leg cramps, limiting his complaints to
lumbar pain and anxiety secondary to his wife’s health condition. R. 1200. Treatment notes
showed that Plaintiff was in no acute distress and he had good symptom control with
medication.51 The ALJ properly gave no weight to PA Sass’s opinion.
The ALJ also gave less weight to the opinions of Dr. Yousuf and PA Sass because neither
considered Plaintiff’s drug-seeking behavior as a motivation for his complaints of pain in light of
the largely benign objective findings in the record. Drug screens and statements to non-treating
sources showed that Plaintiff did not regularly take his prescribed pain medication but did take
other substances such as marijuana and crack cocaine.52 The ALJ found that Plaintiff’s drugseeking behavior diminished his credibility. An ALJ may consider drug seeking behavior as a
credibility factor.53
Plaintiff argues that the ALJ failed to give weight to the opinion of consultative examiner
Dennis Wilson, Ph.D., that he had moderate limitations in sustaining concentration and
persistence, and in his ability to interact with others.54 To the contrary, the ALJ credited this
opinion and incorporated limitations into the residual functional capacity assessment to account
for these restrictions. To account for Dr. Wilson’s findings, the ALJ limited Plaintiff to simple
tasks that involved occasional interaction with coworkers and supervisors and no contact with
the general public.

51

52

R. 1199-1200.
R. 76, 886, 1110, 1211, 1215.

53

See Lawson v. Comm’r of Soc. Sec., 192 F. Appx 521, 528 (6th Cir. 2006) (credibility factors
considered by the ALJ included drug-seeking behavior).
54

R. 704-09.
13

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 limited range of light work, and Plaintiff has failed to
show that he is otherwise more limited.
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.

The

Commissioner may carry this burden by applying the Grids55 which direct a conclusion of
“disabled” or “not disabled” based on the claimant’s age and education and on whether the
claimant has transferable work skills.56 However, if a claimant suffers from a limitation not
accounted for by the Grids, as in the present case, the Commissioner may use the Grids as a
framework for his decision but must rely on other evidence to carry her burden. In such a case,
the Commissioner may rely on the testimony of a vocational expert to find that the claimant
possesses the capacity to perform other substantial gainful activity that exists in the national
economy.57
Here, the ALJ found that Plaintiff suffered from limitations beyond those accounted for
by the Grids, and, therefore, used the Grids merely as a framework in determining whether
Plaintiff could perform other work. The ALJ then relied on the testimony of a vocational expert
in determining that there was a significant number of jobs in the national economy that Plaintiff
could perform. This testimony provides substantial evidence to support the ALJ’s finding that
55

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

56

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).

57

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 537 – 38 (6th Cir. 2001); Cline v. Comm’r of
Soc. Sec., 96 F.3d 146, 150 (6th Cir. 1996).
14

Plaintiff is not disabled.58 Accordingly, 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:

58

July 10, 2017.

See Foster, 279 F.3d at 356-57 (finding that substantial evidence may be produced through
reliance on the testimony of a vocational expert in response to a hypothetical question).
15