Mayes v. Commissioner of Social Security

Filing 14

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Chief Judge S. Thomas Anderson on 7/20/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ALUREALS MAYES,

)
)
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)
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)
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Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Case No: 1:14-cv-01248-STA-cgc

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
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Plaintiff Alureals Mayes filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying her 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 May 1, 2013.
On May 22, 2013, the ALJ denied the claim. The Appeals Council subsequently denied the
request for review. Thus, the decision of the ALJ became the Commissioner’s final decision.
For the reasons set forth below, the decision of the Commissioner is AFFIRMED.
Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision
made by the Commissioner after a hearing to which he was a party. “The court shall have the
power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security, with or without remanding the

1

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

When substantial evidence supports the Commissioner’s

determination, it is conclusive, even if substantial evidence also supports the opposite
conclusion.7
Plaintiff was born on May 18, 1984, and has a high school education and two years of
college. She has past relevant work as a fast food worker. Her amended onset date is January 1,
2011. In her disability report, Plaintiff alleged disability due to scoliosis.

1

42 U.S.C. § 405(g).

2

Id.

3

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

4

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

5

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

6

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

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

The ALJ made the following findings: (1) Plaintiff met the insured status requirements
through December 31, 2011; (2) Plaintiff has not engaged in substantial gainful activity since the
alleged onset date; (3) Plaintiff has the following severe impairment: scoliosis; 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;
(4) Plaintiff retains the residual functional capacity to perform the full range of sedentary work
as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a); (5) Plaintiff is unable to perform her past
relevant work; (6) Plaintiff was a younger individual with a high school education on the alleged
amended onset date; (7) transferability of job skills is not material to the determination of
disability because Plaintiff’s past relevant work was unskilled; (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
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

8

R. 10 – 17.

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.
3

The Commissioner conducts the following, five-step analysis to determine if an
individual is disabled within the meaning of the Act:
1. An individual who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2. An individual who does not have a severe impairment will not be found to be disabled.
3. A finding of disability will be made without consideration of vocational factors, if an
individual is not working and is suffering from a severe impairment which meets the duration
requirement and which meets or equals a listed impairment in Appendix 1 to Subpart P of the
regulations.
4. An individual who can perform work that he or she has done in the past will not be
found to be disabled.
5. If an individual cannot perform his or her past work, other factors including age,
education, past work experience and residual functional capacity must be considered to
determine if other work can be performed.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
with a finding that, although Plaintiff cannot perform her past relevant work, a substantial
number of jobs exists in the national economy that she can perform.
Plaintiff argues that substantial evidence does not support the ALJ’s findings. She
specifically argues that the ALJ erred (1) at step two by not finding that her knee pain,
depression, and social anxiety were severe impairments, (2) in his credibility assessment, and (3)
in his weighing of the medical opinion evidence. Plaintiff’s arguments are not persuasive.
Step two of the five-step disability analysis looks at whether the claimant has a “severe
medically determinable physical or mental impairment” or “a combination of impairments that is

12

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

13

20 C.F.R. § 404.1520(a).
4

severe.”14 In the present case, the ALJ found that Plaintiff had the severe impairment of
scoliosis. When an ALJ determines that one or more impairments are severe, the ALJ “must
consider limitations and restrictions imposed by all of an individual’s impairments, even those
that are not ‘severe.’”15 When an ALJ considers all of a claimant’s impairments in the remaining
steps of the disability determination, the ALJ’s failure to find additional severe impairments at
step two “[does] not constitute reversible error.”16
The ALJ in this case decided that Plaintiff suffered from a severe impairment, i.e.,
scoliosis, but that her remaining conditions were not severe. In the remaining steps of the
disability determination, the ALJ “consider[ed] limitations and restrictions imposed by all of
[Plaintiff’s] impairments,” including her non-severe impairments.17 Therefore, any error at step
two was harmless.
Moreover, although Plaintiff contends that her knee pain constitutes a severe impairment,
the record reveals repeated instances in which Plaintiff walked with a normal gait, displaying
good strength and range of motion in her legs and knees, and the record contains no medical

14

20 C.F.R. § 404.1520(a)(4)(ii).

15

Soc. Sec. Rul. 96–8p, 1996 WL 374184 at *5.

16

Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987). In Maziarz,
the agency determined that the claimant suffered from several severe impairments but that his
cervical condition was not severe. Because the agency continued with the remaining steps in the
disability determination and because the agency “properly could consider claimant’s cervical
condition in determining whether claimant retained sufficient residual functional capacity to
allow him to perform substantial gainful activity,” the Court held that any error at step two was
harmless and that it was, therefore, “unnecessary to decide” whether the agency erred in failing
to find that the claimant's cervical condition constituted a severe impairment. Id.

17

Soc. Sec. Rul. 96–8p, 1996 WL 374184 at *5.
5

documentation of frequent knee pain that could impose ongoing functional limitations.18 As for
Plaintiff’s alleged depression and social anxiety, the ALJ pointed out the absence of ongoing
mental health treatment as evidence that Plaintiff’s mental impairments were less than severe.19
Additionally, the ALJ looked at Plaintiff’s own function report and consultative psychological
examination, each of which detailed behaviors incompatible with severe mental impairment.20
Thus, the ALJ did not err at step two by failing to find other severe impairments.
As for the ALJ’s credibility assessment of Plaintiff, a claimant’s credibility comes into
question when her “complaints regarding symptoms, or their intensity and persistence, are not
supported by objective medical evidence.21 “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.”22 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.”23 Here, the
Court finds no error in the ALJ’s credibility determination because Plaintiff did not provide

18

R. 267-68, 325, 337, 341.

19

See White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009) (ALJ justified in finding
that Plaintiff’s failure to seek mental health treatment reflected on the severity of the
impairment).

20

R. 192-99, 298-303.

21

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

22

Id.

23

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

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.24
The ALJ considered Plaintiff’s testimony and concluded that Plaintiff’s statements
concerning her impairments and their impact on her ability to work were not totally credible. The
ALJ noted that Plaintiff’s subjective limitations were not well supported by the medical records
or by her daily activities, which included taking care of two young children, driving a car,
preparing meals, shopping, and performing household chores such as laundry, cleaning, and
washing dishes.25 The ALJ properly found that such behaviors were incompatible with disabling
physical or mental limitations.26
Regarding Plaintiff’s physical complaints, a 2013 MRI of Plaintiff’s lumbar spine found
only mild narrowing of disc space, no evidence of disc herniation, nerve-root compression, or
spinal stenosis, and no nerve damage.27 Physical-therapy records indicated that Plaintiff had
normal range of motion in her shoulders, elbows, wrists, fingers, hips, knees, and ankles, and
only slightly reduced muscle strength.28 Because objective medical evidence failed to support
Plaintiff’s subjective allegations, the ALJ properly discounted the credibility of those claims.
Additionally, Plaintiff took no medication for her allegedly disabling symptoms, she
received mental health treatment on only one occasion in the years following her alleged onset
24

See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529(c).

25

R. 193-95.

26

See Temples v. Comm’r of Soc. Sec., 515 F. App’x 460, 462 (6th Cir. 2013); 20 C.F.R. §§
404.1529(c)(3)(i), 416.929(c)(3)(i) (ALJ must consider claimant’s daily activities when
evaluating her symptoms).

27

R. 361.

28

R. 324, 336.
7

date, and she did not see her primary care physician for over a year between January 2012 and
March 2013. 29 When Plaintiff did return to her primary physician, it was to seek help with her
disability paperwork.30 An ALJ may consider the treatment an individual has received and
whether that treatment supports a finding of disability.31
Plaintiff’s poor work record also led the ALJ to discount the credibility of her subjective
claims. Although Plaintiff completed high school and has a two-year college degree, her
employment history was sporadic before she allegedly became unable to work.32
Plaintiff argues that the ALJ must do more than “simply ... recite the factors that are
described in the regulations for evaluating symptoms.”33 Plaintiff also notes that the ALJ is not
permitted to make a conclusory statement that the individual’s allegations have been considered.
The Court is not persuaded by Plaintiff’s argument because the ALJ’s credibility determination
clearly involved more than a conclusory statement as discussed above, and that determination is
supported by substantial evidence.
Next, Plaintiff argues that the ALJ erred by failing to properly consider and weigh the
checklist form submitted by Susan Lowry, M.D., Plaintiff’s treating physician. Medical opinions
are to be weighed by the process set forth in 20 C.F.R. § 404.1527(c). Under the treating

29

R. 119, 141, 267, 299-301.

30

R. 351.

31

See Curler v. Comm’r of Soc. Sec., 561 F. App’x 464, 473 (6th Cir. 2014) (“Had Curler
suffered from severe pain associated with her back condition, the medical records would have
revealed . . . recommendations for more aggressive treatment, and more significant doctorrecommended functional limitations.”); SSR 96-7p (“[T]he individual’s statements may be less
credible if the level or frequency of treatment is inconsistent with the level of complaints . . . .”).
32

R. 14, 27, 146-53, 187, 299.

33

SSR 96-7p, 1996 WL 374186 at *2.
8

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.”34 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.”35
Dr. Lowry opined that Plaintiff could sit for four hours per eight-hour work day, must
alternate between standing and walking every twenty minutes throughout the day, and could
never stoop or crouch.36 Although the checklist provided Dr. Lowry with a space in which to
explain the medical findings that supported such postural limitations, her explanation merely
referred to Plaintiff’s pain when bending.37 In weighing a medical opinion, an ALJ may consider
the degree to which the doctor explains and supports her opinion with other evidence. Here, Dr.
Lowry’s opinion consisted of a short checklist form with little supporting explanation. Such
“opinions,” even when offered by a treating physician, are of limited value.38

34

20 C.F.R. § 404.1527(c)(2).

35

Soc. Sec. Rul. 96–2P.

36

R. 349-50.

37

R. 350.

38

See Smith v. Comm’r of Soc. Sec., 2015 WL 899207 at *15-16 (E.D. Mich. Mar. 3, 2015)
(collecting cases examining the weight that should be afforded to checkbox treating physician
opinions and noting that “other circuit courts and courts within the Sixth Circuit have cast doubt
on the usefulness of such ‘checkmark’ or ‘multiple choice’ forms when unaccompanied by
explanation or unsupported by physician’s notes”).
9

The ALJ found Dr. Lowry’s opinion more limiting than necessary in light of the
objective evidence and Plaintiff’s sporadic treatment history and gave the opinion weight only to
the extent that it was compatible with sedentary work. The ALJ specifically found that Dr.
Lowry’s opinion conflicted with evidence indicating that Plaintiff walked with a normal gait,
exhibited good range of motion and muscle strength, and reported significant improvement with
physical therapy. Because Dr. Lowry failed to explain how Plaintiff’s impairments caused such
extreme limitations, her opinion was due less weight, and the ALJ gave good reasons for the
weight he assigned Dr. Lowry’s opinion.
Plaintiff also argues that the ALJ failed to include a function-by-function assessment, as
required by SSR 96-8p. SSR 96-8p provides that in determining a claimant’s residual functional
capacity, the ALJ must “assess [the claimant’s] work-related abilities on a function-by-function
basis.” However, while a “function-by-function analysis is desirable, SSR 96-8p does not
require ALJs to produce such a detailed statement in writing.”39 Instead, “the ALJ need only
articulate how the evidence in the record supports the RFC determination, discuss the claimant’s
ability to perform sustained work-related activities, and explain the resolution of any
inconsistencies in the record.”40 Here, the ALJ discussed the evidence of record and how such
evidence supported his residual functional capacity determination. This determination is
supported by substantial evidence.

39

Delgado v. Commr of Soc. Sec., 30 F. App’x 542, 547 (6th Cir. Mar. 4, 2002) (citation
omitted).
40

Id. (citation omitted). See also, Rudd v. Comm’r of Social Security, 2013 WL 4767020 at *9
(6th Cir. Sept. 5, 2013) (SSR 96-8p merely requires the ALJ to “address a claimant's exertional
and nonexertional capacities and also describe how the evidence supports her conclusions”).
10

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 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.43 If a claimant suffers from non-exertional impairments
that preclude his or her performing a full range of work at a given exertional level, the
Commissioner may not reply on the grids alone; however, if the presence of a non-exertional
limitation does not significantly limit the range of work a claimant may perform, then the
Commissioner may rely exclusively on the grids. 44
Here, the ALJ used the grids as a framework and, based on a residual functional capacity
for the full range of sedentary work and considering Plaintiff’s age, education, and work
experience, determined that a finding of not disabled was directed by Medical-Vocational Rule
201.27. That decision is supported by the record as a whole. Because substantial evidence
supports the ALJ’s determination that Plaintiff was not disabled and the proper rules were
followed, the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date:

July 20, 2017.

41

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

42

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

43

Wright v. Massanari, 321 F.3d 611, 615 (6th Cir. 2003).

44

See Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 424 (6th Cir. 2008).
11