Shephard v. Colvin

Filing 23

ORDER AFFIRMING THE COMMISSIONER'S DECISION. Signed by Magistrate Judge Tu M. Pham on 4/26/2018. (Pham, Tu)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

VICTOR B. SHEPHARD,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

16-cv-1106-TMP

ORDER AFFIRMING THE COMMISSIONER’S DECISION

Before the court is plaintiff Victor B. Shephard’s appeal
from a final decision of the Commissioner of Social Security1
(“Commissioner”)

denying

his

application

for

disability

insurance benefits under Title II and Title XVI of the Social
Security Act (“Act”), 42 U.S.C. § 401 et seq.

On October 6,

2016, the parties consented to the jurisdiction of the United
States magistrate judge pursuant to 28 U.S.C. § 636(c).
No.

10.)

This

case

was

undersigned on March 13, 2017.

subsequently

reassigned

to

(ECF
the

For the reasons set forth below,

the decision of the Commissioner is affirmed.
I.

PROCEDURAL HISTORY

In June of 2009, Shephard applied for disability benefits
under Title II and Title XVI of the Act, alleging disability
1

Carolyn W. Colvin was the Acting Commissioner of Social Security
at the time this case was filed.

beginning on January 1, 2008.

(R. at 219–20.)

The Social

Security Administration (“SSA”) denied these claims initially.
(R. at 70–71.)

On January 15, 2013, Shephard reapplied for

disability under Title II and Title XVI, alleging disability
beginning

on

January

1,

2010,

depression,

special

(R. at 190, 197, 271.)

education, and an injured back.

due

to

The SSA

denied these applications initially and upon reconsideration.
(R. at 94–95, 120–21.)

At Shephard’s request, a hearing was

held before an Administrative Law Judge (“ALJ”) on November 17,
2014.

(R. at 33–69.)

On December 24, 2014, the ALJ issued a

decision denying Shephard’s request for benefits after finding
that Shephard was not under a disability because he retained the
residual functional capacity (“RFC”) to perform work existing in
significant numbers in the national economy.

(R. at 8–32.)

March

denied

21,

2016,

the

SSA’s

request for review.
became

the

final

Subsequently,
action.

(ECF

on

Appeals

(R. at 1.)
decision

May

No.

18,

Council

Shephard’s

Therefore, the ALJ’s decision

for

the

Commissioner.

2016,

Shephard

Shephard

1.)

On

argues

filed
that

(Id.)

the

the

instant

ALJ’s

RFC

determination is not supported by substantial evidence because
the

ALJ

improperly

weighed

the

medical

source

opinions

and

failed to explain the impact that Shephard’s major depressive
disorder had upon his RFC.
II.

(ECF No. 19.)
CONCLUSIONS OF LAW

-2-

A.

Standard of Review
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 she or he was a party.

“The court shall have

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.”
review
there

of
is

whether

the

Commissioner’s

substantial

the

42 U.S.C. § 405(g).

evidence

Commissioner

making the decision.

decision

used

is

limited

to

support

the

the

proper

legal

Judicial
to

whether

decision
criteria

and
in

Id.; Burton v. Comm'r of Soc. Sec., No.

16-4190, 2017 WL 2781570, at *2 (6th Cir. June 27, 2017); Cole
v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

Substantial

evidence is more than a scintilla of evidence but less than
preponderance and is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”

Kirk v.

Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.
1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In

determining

whether

substantial

evidence

exists,

the

reviewing court must examine the evidence in the record as a
whole and “must ‘take into account whatever in the record fairly
detracts from its weight.’”

Abbott v. Sullivan, 905 F.2d 918,

-3-

923 (6th Cir. 1990) (quoting Garner v. Heckler, 745 F.2d 383,
388

(6th

support

Cir.
the

1984)).

If

Commissioner’s

affirm

that

decision

record

could

support

and
a

substantial
decision,

“may

not

decision

evidence

however,
even

the

is

the

to

court

must

whether

inquire

other

found

the

way.”

Barker

v.

Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v.
Sec’y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir.
1989)).
resolve

Similarly, the court may “not try the case de novo,
conflicts

credibility.”

in

the

evidence

or

decide

questions

of

Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713

(6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th
Cir. 2007)).

The Commissioner, not the court, is charged with

the duty to weigh the evidence and to resolve material conflicts
in the testimony.

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); Prater v. Comm'r of Soc. Sec., No. 114CV01221STATMP,
2017 WL 2929479, at *1 (W.D. Tenn. July 10, 2017).
B.

The Five-Step Analysis
The Act defines disability as the “inability to engage in

any

substantial

gainful

activity

by

reason

of

any

medically

determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last

for

a

continuous

period

of

-4-

not

less

than

12

months.”

42 U.S.C. § 423(d)(1).

Additionally, section 423(d)(2) of the

Act states,
An individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.
For purposes of the preceding
sentence (with respect to any individual), “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 of
the country.
Under

the

Act,

the

claimant

bears

the

establishing an entitlement to benefits.

ultimate

burden

of

Oliver v. Comm’r of

Soc. Sec., 415 F. App’x 681, 682 (6th Cir. 2011).

The initial

burden is on the claimants to prove they have a disability as
defined by the Act.

Siebert v. Comm’r of Soc. Sec., 105 F.

App’x 744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d at
529); see also Born v. Sec’y of Health & Human Servs., 923 F.2d
1168, 1173 (6th Cir. 1990).

If the claimant is able to do so,

the burden then shifts to the Commissioner to demonstrate the
existence of available employment compatible with the claimant’s
disability and background.

Born, 923 F.2d at 1173; see also

-5-

Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 559 (6th Cir.
2014).
Entitlement to social security benefits is determined by a
five-step sequential analysis set forth in the Social Security
Regulations.

See 20 C.F.R. §§ 404.1520, 416.920.

First, the

claimant must not be engaged in substantial gainful activity.
See 20 C.F.R. §§ 404.1520(b), 416.920(b).

Second, a finding

must be made that the claimant suffers from a severe impairment.
20

C.F.R.

§§

404.1520(a)(4)(ii),

416.920(a)(5)(ii).

In

the

third step, the ALJ determines whether the impairment meets or
equals

the

severity

criteria

set

forth

in

the

Listing

Impairments contained in the Social Security Regulations.
20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d).

of
See
If

the impairment satisfies the criteria for a listed impairment,
the claimant is considered to be disabled.

On the other hand,

if the claimant’s impairment does not meet or equal a listed
impairment,
analysis
return

and
to

the

ALJ

must

determine
any

past

404.1520(a)(4)(iv),

undertake

whether

the

relevant

(e),

the

fourth

claimant

work.

See

step

has

the

20

416.920(a)(4)(iv).

in
RFC

C.F.R.

If

the

the
to
§§
ALJ

determines that the claimant can return to past relevant work,
then a finding of not disabled must be entered.

Id.

But if the

ALJ finds the claimant unable to perform past relevant work,
then

at

the

fifth

step

the

ALJ

-6-

must

determine

whether

the

claimant can perform other work existing in significant numbers
in the national economy.
(g), 416.960(c)(1)–(2).

See 20 C.F.R. §§ 404.1520(a)(4)(v),
Further review is not necessary if it

is determined that an individual is not disabled at any point in
this

sequential

analysis.

20

C.F.R.

§§

404.1520(a)(4),

416.920(a)(4).
C.

ALJ’s Step-Four Determination
1.

Weight Given to Medical Source Opinions

Shephard finds fault with the ALJ’s treatment of nearly
every medical source opinion in the record.

He claims that

these opinions do not support either the ALJ’s conclusion that
he

could

occasionally

lift

fifty

pounds

and

frequently

lift

twenty-five pounds or the ALJ’s treatment of his mental health
limitations.
The first medical source opinion in the record to address
Shephard’s lifting abilities was Donita Keown, M.D.
52.)

(R. at 350–

On August 10, 2009, Dr. Keown examined Shepard.

The

majority of the exam was unremarkable; however, Dr. Keown noted
that Shephard’s left shoulder hung lower than the right and had
a limited range of motion.

Additionally, Dr. Keown found no

clear basis for Shephard’s back pain.

Based on the examination,

Dr. Keown found that Shephard could sit, walk, or stand, for
eight hours in an eight-hour work day, could occasionally lift
twenty to twenty-five pounds, and could frequently lift ten to

-7-

fifteen pounds.

Dr. Keown noted that the restrictions might be

altered based upon the results of a pending x-ray of Shephard’s
left

shoulder.

(Id.)

significant

weight,

restriction

since

The

but

the

degenerative spurring.

gave

x-rays

ALJ

gave

little

most
weight

results

showed

(R. at 24, 353.)

of

this

opinion

the

lifting

to

“very

minimal”

Dr. Keown examined

Shephard a second time on February 11, 2013.

(R. at 364–66.)

This exam was also unremarkable, and Dr. Keown concluded that
Shephard could sit, walk, or stand for six to eight hours in an
eight-hour

work

day,

occasionally

lift

thirty-five

to

pounds, and frequently lift fifteen to twenty pounds.

forty
(Id.)

The ALJ again gave this opinion significant weight but gave
little weight to the lifting restriction, finding that Dr. Keown
had not reviewed the previously mentioned x-rays and that the
normal results of the exam did not support the limitations on
lifting.

(R. at 24.)

Harold Ramsey, M.D., evaluated Shephard’s medical records
on April 1, 2013.
Keown’s

opinion,

(R. at 78–82.)
Dr.

Ramsey

Giving great weight to Dr.

determined

that,

among

other

postural and exertional limitations, Shephard could occasionally
lift twenty pounds and frequently lift ten pounds.
Dr. Ramsey concluded that Shephard was not disabled.

Ultimately,
(Id.)

The

ALJ gave this opinion little weight, finding it too restrictive.
(R. at 24.)

-8-

Larry McNeil, M.D., evaluated Shephard’s medical records on
June 9, 2013.

(R. at 102–07.)

weight to Dr. Keown’s opinion.

Dr. McNeil also gave great
However, Dr. McNeil determined

that Shephard had far fewer postural and exertional limitations
than

Dr.

limited

Ramsey

had
to

Shephard

twenty-five

opined.
carrying

pounds

Furthermore,
fifty

frequently.

Shephard was not disabled.

pounds

Dr.

(Id.)

Dr.

McNeil

only

occasionally

and

concluded

that

McNeil

The ALJ gave this opinion

significant weight, finding that it was more comprehensive and
well supported than Dr. Ramsey’s.

(R. at 24.)

The final medical source to opine on Shephard’s lifting
limitations was John Woods, M.D.

(R. at 449–60.)

examined Shephard on October 29, 2014.

Dr. Woods

The exam was primarily

unremarkable; although, Dr. Woods did note that Shephard had
moderately severe bilateral pes planus.

(R. at 452.)

Among

other exertional and postural limitations, Dr. Woods found that
Shephard could lift no more than twenty pounds but could do so
frequently.

(R.

at

454–55.)

He

based

his

findings

Shephard’s lower back pain and bilateral pes planus.
457.)

upon

(R. at

The ALJ gave this opinion little weight, finding that Dr.

Woods’s basis for his opinions did not support the severity of
his specified limitations.
Regarding
fault

with

how

Shephard’s
the

ALJ

(R. at 24.)
mental
weighed

-9-

limitations,
the

opinions

Shephard
of

two

finds

medical

examiners: William Sewell, Ph. D., and David Pickering, Ph. D.
Dr. Sewell examined Shephard on March 4, 2013.

(R. at 368–74.)

Dr. Sewell observed that Shephard was well groomed and spoke in
a satisfactory fashion.

(R. at 368.)

Dr. Sewell then examined

Shephard’s mental status by administering a series of memory and
abstract reasoning tests.
determined

that

notwithstanding

As a result of this exam, Dr. Sewell

Shephard
Shephard’s

had

average

dysthymic

mood,

intelligence
did

not

and,

exhibit

sufficient symptoms to meet the criteria for a major mood or
anxiety

disorder.

(R.

at

370.)

Dr.

Sewell

concluded

that

Shephard would have difficulty functioning in the abstract, but
had no other work-related limitations.

(R. at 370–72.)

The ALJ

found this opinion overly optimistic and gave it some weight.
(R. at 24–25.)
Dr. Pickering examined Shephard on October 28, 2014.
at 475–87.)

(R.

He observed that Shephard was well groomed and

cooperative but was also anxious, inhibited, constricted, angry,
and distant.

(R. at 476.)

Dr. Pickering indicated in his

opinion that he administered a total of eight different tests to
examine Shephard’s mental status.
Pickering

determined

that

From Shephard’s results, Dr.

Shephard

exhibited

significant

symptoms of major depressive disorder and generalized anxiety
disorder.
Shephard’s

(R. at 479.)
condition

Dr. Pickering found it unlikely that

would

improve

-10-

significantly

in

the

foreseeable future.

Dr. Pickering concluded that Shephard faced

a plethora of moderate and marked limitations in his ability to
interact

with

others,

function

independently,

remember

and

understand instructions, sustain concentration and persistence,
and adapt to changes.

(R. at 480–84.)

The ALJ gave this

opinion

noting

little

reviewed

weight,

Shephard’s

Dr.

Pickering

had

not

records,

medical

that

Dr.

Pickering

did

not

report the specific mental status exam findings, part of the
opinion was based on Shephard’s subjective statements, and the
opinion

conflicted

with

ability to socialize.
ALJs

employ

a

Shephard’s

later

testimony

“sliding

scale

of

deference”

for

sources

typically

merit

the

medical

Norris v. Comm'r

of Soc. Sec., 461 F. App'x 433, 439 (6th Cir. 2012).
treating

his

(R. at 25.)

opinions depending upon each opinion’s source.

from

about

most

Opinions
deference,

followed by opinions from examining sources, and then from nonexamining

sources.

416.927(c)(1)–(2).

See

20

C.F.R.

§§

404.1527(c)(1)–(2),

However, in certain circumstances, an ALJ

may assign more weight to the opinion of a non-examining source
than an examining source.

See Miller v. Comm'r of Soc. Sec.,

811 F.3d 825, 834 (6th Cir. 2016).

One example of this is when

the opinion of the non-examining source “is based upon a review
of a complete case record.”

Id. (quoting SSR 96-6p, 1996 WL

374180, *3 (S.S.A. July 2, 1996)).

-11-

In the event that a “non-

examining source did not review a complete case record, ‘[the
Sixth Circuit] require[s] some indication that the ALJ at least
considered

these

facts

before

giving

greater

opinion’ from the non-examining source.”

weight

to

an

Id. (quoting Blakley

v. Comm'r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009)).
When weighing medical source opinions, the ALJ must consider
various factors, including the evidence upon which the sources’
opinions

are

based

medical record.

and

the

opinions’

consistency

with

the

20 C.F.R. §§ 404.1527(c)(2)–(6), 416.927(c)(2)–

(6).
Shephard argues that all of the medical source opinions
except Dr. McNeil’s contradict the ALJ’s RFC determination of
how

much

weight

Shephard

could

lift.

However,

as

the

ALJ

pointed out, Dr. Keown’s and Dr. Ramsey’s lifting limitations
were

overly

restrictive

in

light

of

the

medical

evidence.

Hence, this part of their opinions merited less weight.
C.F.R.

§

404.1527(c)(4)

(“Generally,

the

more

See 20

consistent

a

medical opinion is with the record as a whole, the more weight
we

will

give

416.927(c)(4).

to

that

medical

opinion.”);

20

C.F.R.

§

The ALJ also properly gave Dr. Woods’s opinion

little weight given that Dr. Woods’s own exam did not support
the severity of the limitations contained in his opinion.

See

20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents
relevant

evidence

to

support

a

-12-

medical

opinion,

particularly

medical signs and laboratory findings, the more weight we will
give

that

medical

Furthermore,

the

opinion.”);

court

can

20

infer

C.F.R.
from

§

the

416.927(c)(3).
ALJ’s

constant

reference to the dates of exams and strictly chronological order
of

analysis

that

the

ALJ

was

aware

that

Dr.

McNeil’s

non-

examining source opinion pre-dated Dr. Woods’s examining source
opinion.

See Gibbens v. Comm'r of Soc. Sec., 659 F. App'x 238,

248 (6th Cir. 2016).

Thus the court finds that the ALJ properly

weighed these opinions and, consequently, substantial evidence
supported

the

lifting

limitations

that

the

ALJ

assigned

to

Shephard.
Shephard objects to the weight that the ALJ gave to the
sources who opined on his mental limitations, arguing that Dr.
Sewell’s report was less objective than Dr. Pickering’s and that
Dr.

Pickering’s

failure

to

examine

Shephard’s

medical

record

should not count against him given that Dr. Sewell also did not
review the record.

However, Dr. Pickering’s opinion was less

supported

Sewell’s

than

Dr.

because

Dr.

Pickering

did

not

describe how Shephard performed on the tests, noting only the
results of the tests, whereas Dr. Sewell documented Shephard’s
performance.

See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).

Furthermore, it would have been unreasonable for the ALJ to
criticize Dr. Sewell for failing to review Shephard’s medical
record because, when Dr. Sewell examined Shephard, Shephard’s

-13-

medical history apparently contained no such evidence.

Thus,

the court finds that the ALJ correctly gave Dr. Pickering’s
opinion less weight than Dr. Sewell’s.
2.

Explanation of Effects of Major Depressive Disorder

Shephard argues that the ALJ failed to provide a basis for
treating Shephard’s major depressive disorder as severe at step
two

of

the

disability

analysis

little import at step four.
the

following

source

opinions;

providers

show

own

concerning

July

description

that

Shephard

nonetheless,

giving

it

Shephard’s medical records contain

treatment

spanning

Shephard’s
notes

evidence

but,

his

notes

16,
of

from

2013,
his

mental

condition as a result of medication.

mental

to

June

condition.

experienced

health:

an

medical

health
6,
The

care

2014;

and

treatment

improvement

(R. at 417, 421.)

in

his

In his

function reports and hearing testimony, Shephard portrayed his
depression and anxiety as impacting his ability to perform basic
chores and socialize.

(R. at 52, 278, 297.)

Yet, he also

indicated that he performs a variety of household chores and
meets with friends on a regular basis.

(R at 45–48, 294–95.)

Between the summary of the evidence section and the analysis
section of her opinion, the ALJ listed each piece of evidence in
the record relating to Shephard’s mental health and described
what

weight

she

assigned

to

this

evidence.

(R.

at

13–25.)

While the ALJ concluded at step two that Shephard suffered from

-14-

severe mental health impairments in the form of major depressive
disorder and borderline intellectual functioning, the ALJ found
at step four that these impairments affected Shephard’s RFC by
restricting him to simple, routine tasks and only occasional
contact with others.
When

an

ALJ

(R. at 20, 22.)

finds

impairment

at

step

two

claimant’s

impairment

that
of

a

claimant

the

has

analysis,

“significantly

a

it

limits

severe

means
[the

mental

that

the

claimant’s]

physical or mental ability to do basic work activities.”

Winn

v. Comm'r of Soc. Sec., 615 F. App'x 315, 320 (6th Cir. 2015)
(quoting Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007));
20 C.F.R. §§ 404.1522, 416.922.

An ALJ’s RFC determination at

step four is a determination of how these impairments “affect
what [a claimant] can do in a work setting.”
404.1545(a)(1), 416.945(a)(1).

20 C.F.R. §§

To make this determination, ALJs

must consider all medical evidence in the record as well as the
claimant’s description of her or his symptoms.
404.1545(a)(3), 416.945(a)(3).

See 20 C.F.R. §§

In the opinion itself, ALJs must

“address a claimant's exertional and nonexertional capacities
and

also

describe

conclusions.”

how

the

evidence

supports

[their]

Rudd v. Comm'r of Soc. Sec., 531 F. App'x 719,

729 (6th Cir. 2013) (citing SSR 96-8p, 1996 WL 374184 (S.S.A
July, 2, 1996)).

In this case, the ALJ considered all of the

evidence on the record, and by assigning weight to the various

-15-

pieces

of

evidence,

effectually

supported her conclusion.

described

how

the

evidence

Thus, the court finds that the ALJ

properly assessed the effect that Shephard’s major depressive
disorder has upon his ability to function in the workplace.
III. CONCLUSION
For the foregoing reasons, the Commissioner’s decision that
Shephard is not disabled is affirmed.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
April 26, 2018

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