Massey v. Commissioner of Social Security

Filing 18

ORDER AFFIRMING THE COMMISSIONER'S DECISION. Signed by Magistrate Judge Tu M. Pham on 4/17/2018. (Pham, Tu)

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

LURINE MASSEY,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

16-cv-2409-TMP

ORDER AFFIRMING THE COMMISSIONER’S DECISION

Before the court is plaintiff Lurine Massey’s appeal from a
final

decision

of

(“Commissioner”)

the

denying

Commissioner
her

of

Security1

Social

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 September 9,

2016, the parties consented to the jurisdiction of the United
States magistrate judge pursuant to 28 U.S.C. § 636(c).
No. 13.)

(ECF

For the reasons set forth below, the decision of the

Commissioner is affirmed.
I.
On
benefits
1

February
under

23,

Title

PROCEDURAL HISTORY
2010,
II

and

Massey
Title

applied
XVI

of

the

for

disability

Act,

alleging

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

disability beginning on January 5, 2010.
Social

Security

Administration

(“SSA”)

initially and upon reconsideration.

(R. at 63.)
denied

(Id.)

these

The
claims

At Massey’s request,

a hearing was held before an Administrative Law Judge (“ALJ”) on
November 9, 2011.

(Id.)

On December 28, 2011, the ALJ denied

Massey’s request for benefits after finding that she was not
under a disability because she retained the residual functional
capacity (“RFC”) to perform past relevant work.
On

February

25,

2013,

Massey

(R. at 63–67.)

reapplied

disability

(R. at 207.)

benefits under Title II of the Act.

for

On May 1,

2013, she reapplied for disability benefits under Title XVI of
the

Act.

(R.

at

209.)

Initially,

she

alleged

disability

beginning on January 6, 2010, but she now alleges disability
beginning on December 29, 2011, due to lower lumbar pain, high
blood pressure, knee pain in both knees, and impaired eyesight.
(R. at 33, 207, 209, 228.)
December 30, 2015.

Massey’s last date insured was

(R. at 225.)

The SSA also denied these

applications initially and upon reconsideration.

(R. at 78, 92,

121,

second

139.)

Massey

requested

and

before an ALJ on December 2, 2014.

received

a

(R. at 27.)

hearing

On February 18,

2015, the ALJ issued a decision denying Massey’s request for
benefits after finding that Massey was not under a disability
because she retained the RFC to perform past relevant work.
at 8–26.)

(R.

On May 16, 2016, the SSA’s Appeals Council denied

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Massey’s request for review.

(R. at 1.)

Therefore, the ALJ’s

decision became the final decision for the Commissioner.

(Id.)

Subsequently, on June 13, 2016, Massey filed the instant action.
(ECF No. 1.)

Massey argues that the ALJ’s determination that

she could return to previous work is unsupported by substantial
evidence because the ALJ should have given more weight to the
RFC

assessment

provided

by

her

treating

physician,

David

K.

Jennings, M.D., and less weight to the opinions of the state
examiners and evaluators.
II.
A.

(ECF No. 16 at 3–8.)
CONCLUSIONS OF LAW

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

-3-

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,

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

the

evidence

however,
even

is

the

to

way.”

court

must

whether

inquire

other

found

the

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,

-4-

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

42 U.S.C. § 423(d)(1).

period

of

not

less

than

12

months.”

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

of

Oliver v. Comm’r of

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

-5-

burden

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

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

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impairment,
analysis
return

the

and
to

ALJ

must

determine
any

past

404.1520(a)(4)(iv),

undertake

whether

the

relevant

(e),

the

fourth

claimant

work.

step

has

See

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

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
As a preliminary matter, the court notes that the ALJ’s

determination was restrained by the principles of res judicata
due

to

the

presence

of

the

prior

disability

determination.

Drummond v. Comm'r of Soc. Sec., 126 F.3d 837, 842–43 (6th Cir.
1997).

Consequently,

the

ALJ

could

only

alter

the

prior

decision if Massey presented proof of “changed circumstances.”
Id.; AR 98-4(6), 1998 WL 283902, at *3 (S.S.A. June 1, 1998)
(“[A]djudicators

must

adopt

such

-7-

a

finding

from

the

final

decision by an ALJ . . . unless there is new and material
evidence relating to such a finding . . . .”).
Turning to the facts in this case, in his opinion, the ALJ
considered

the

medical

records

provided

by

Massey,

Massey’s

subjective description of her symptoms, and the testimony of a
vocational expert.

The ALJ determined that Massey had the RFC

to perform medium work as defined by 20 C.F.R. §§ 404.156(c) and
416.967(c) with the physical limitations that she could only
“frequently climb, balance, stoop, kneel, crouch, and crawl,”
and the mental limitation that she could perform “simple and
low-level detailed tasks.”

(R. at 17.) The ALJ concluded that

Massey was capable of returning to past relevant work as a hand
packer and store laborer.
1.

(R. at 21.)

Weight of Dr. Jennings’s Opinion

Massey argues that, when making the RFC determination, the
ALJ should have given Dr. Jennings’s opinion greater weight. On
June

2,

2014,

Dr.

Jennings

filled

out

a

RFC

evaluation

consisting primarily of boxes that he checked to indicate that
Massey

had

severe

exertional,

limitations.

(R. at 579–81.)

diagnoses

including

as

hypertension,

chronic

hyperthyroidism,

chronic pain disorder.

postural,

and

Dr. Jennings
low

back

sciatica,

(R. at 585.)

manipulative

listed Massey’s
pain,

and,

cataracts,

possibly,

a

He stated that he could

provide no further assessment because Massy was relatively new

-8-

to

his

care.

(Id.)

This

evaluation

is

the

only

item

in

Massey’s records attributed to Dr. Jennings.
At the hearing, the ALJ noted the scarcity of information
relating to Dr. Jennings and provided Massey with additional
time to supplement the record with more information relating to
Dr. Jennings.
evidence.

(R. at 30–31.)

(R.

at

11.)

Massey did not provide any new

Consequently,

Jennings’s RFC determination no weight.
out

that

the

opinion

was

markedly

objective evidence in the record.

the

ALJ

gave

Dr.

The ALJ also pointed
inconsistent

with

the

(R. at 19.)

Treating sources are accepted medical sources who have or
have had an “ongoing treatment relationship” with a claimant.
20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
relationship
claimant
consistent
treatment

to

has

be

an

visited

with

ongoing
a

accepted

and/or

relationship

treating

source

“with

a

medical

practice

for

the

evaluation

medical condition(s).”

treatment

The SSA deems a

Id.

required

for

[the

when

a

frequency
type

of

claimant’s]

The burden is on the claimant to

prove that this relationship exists.

See Grisier v. Comm'r of

Soc. Sec., No. 17-3570, 2018 WL 417557, at *2 (6th Cir. Jan. 16,
2018); see also Sorrell v. Comm'r of Soc. Sec., 656 F. App'x
162,

169

(6th

Cir.

2016)

(“In

steps

one

through

four,

‘the

claimant bears the burden of proving the existence and severity
of limitations caused by her impairments . . . .’” (quoting Jones

-9-

v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003))).
Should the claimant meet this burden, the ALJ will then assess
whether the treating source’s opinion is consistent with the
medical records and is well-supported by clinical and laboratory
diagnostic

techniques.

416.927(c)(2).

If

it

20
is,

C.F.R.

the

ALJ

§§

will

404.1257(c)(2),
give

the

opinion

controlling weight; if it is not, the ALJ will apply a set of
regulatory factors to the opinion to determine what weight to
give it.

Id.

decisions

for

ALJs will “always give good reasons” in their
the

treating source.

weight

that

they

gave

the

opinion

of

a

Id.

Massey provided the ALJ with no evidence that Dr. Jennings
had ever examined her, much less that he had examined her with
sufficient frequency to render him a treating source.

(R. at

11.)

err

by

2018

WL

Thus,

disregarding

the
Dr.

court

finds

Jennings’s

that

the

opinion.

ALJ
See

did

not

Grisier,

417557, at *2 (finding that a doctor was not a treating source
because the doctor had only one consultative evaluation with a
claimant); Pasco v. Comm'r of Soc. Sec., 137 F. App'x 828, 837–
38

(6th

Cir.

2005)

(upholding

an

ALJ’s

decision

to

give

no

weight to a medical source’s opinion when the claimant’s record
contained no “office notes or other treatment records” from the
medical source and the source’s opinion lacked any objective
basis for support).

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2.

Weight of State Medical Source Opinions

Massey argues that, when making the RFC determination, the
ALJ should not have given great weight to the opinions of the
state examiners, who had little contact with her, and the state
consultants, who did not have access to her complete medical
records.

On

June

28,

2013,

and

December

2,

2013,

Gammel, Ph.D., examined Massey’s mental condition.
570.)

Heather

(R. at 478,

It is unclear from Dr. Gammel’s opinion whether she had

access to a complete set of Massey’s medical records, but she
appears to have reviewed a substantial portion of the records.
(R. at 478, 480, 570–73.)
Gammel

concluded

that

After the first examination, Dr.

Massey

“demonstrated

extremely

poor

effort,” which impeded Dr. Gammel’s ability to accurately assess
her condition.
Dr.

Gammel

(R. at 481, 482.)

determined

that

After the second examination,

Massey’s

mental

conditions

mildly

impaired her abilities to understand work-related instructions
and adapt to changes in the work place and moderately impaired
her abilies to concentrate and interact with others.
573.)

(R. at

The ALJ noted that the opinion was the product of a

thorough examination.

Although the ALJ did not explicitly state

what weight he assigned this opinion, he appears to have given

-11-

it substantial weight because he incorporated a number of the
limitations into Massey’s RFC.2

(R. at 20.)

On July 1, 2013, state medical examiner Linda Yates, M.D.,
examined Massey’s physical condition.

(R. at 486.)

Dr. Yates

concluded that Massey had the physical ability to sit four to
six hours in an eight-hour work day, stand and walk one to three
hours in an eight-hour work day, and lift and carry five to ten
pounds.

(R. at 490.)

assessment

of

Massey

However, Dr. Yates clarified that her
was

limited

by

her

lack

of

access

to

Massey’s full medical records and Massey’s “restricted efforts”
to

participate

in

the

exam.

(Id.)

In

light

of

this

clarification, Massey’s sparse history of treatment for several
of her conditions, and the minimal clinical findings in the
records, the ALJ found Dr. Yates’s opinion overly restrictive.
(R. at 19.)
On
Kupstas,

December
Ph.D.,

5,

2013,

reviewed

state

Massey’s

medical
mental

consultant

health

Frank

records

and

concluded that Massey had a number of moderate limitations on
her ability to interact with others and adapt to change in the
workplace.

(R.

at

135–36.)

On

November

14,

2013,

Frank

Pennington, M.D., determined that Massey had a few exertional

2

Noto v. Comm'r of Soc. Sec., 632 F. App'x 243, 249–50 (6th Cir.
2015) (finding it harmless error that an ALJ did not explain the
weight assigned to a treating source since the ALJ incorporated
the source’s opinions into the RFC).
-12-

limitations that would not significantly impact her ability to
work.

(R. at 133–34.)

The ALJ noted that the new medical

evidence obtained after these opinions were formed would not
have altered the opinions.

Because of the evidentiary support

for these opinions, the ALJ gave the opinions great weight.

(R.

at 20.)
ALJs

employ

a

“sliding

scale

of

deference”

opinions depending upon the opinion’s source.

for

medical

Norris v. Comm'r

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

Opinions

from treating sources typically merit the most deference.
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

20

For this reason, as

discussed above, if an ALJ gives a treating source’s opinion
less than controlling weight, she or he must give “good reasons”
for doing so.
573

(6th

Cir.

obligation
sources.

Austin v. Comm'r of Soc. Sec., 714 F. App'x 569,

when

2018).
weighing

However,
medical

ALJs

do

not

opinions

have

from

the

same

non-treating

See Martin v. Comm'r of Soc. Sec., 658 F. App'x 255,

259 (6th Cir. 2016) (finding that ALJs are exempted from the
“reasons-giving requirement” when weighing medical opinions from
non-treating sources); Reeves v. Comm'r of Soc. Sec., 618 F.
App'x 267, 273 (6th Cir. 2015); Smith v. Comm'r of Soc. Sec.,
482 F.3d 873, 876 (6th Cir. 2007).

But see SSR 96-8p, 1996 WL

374184,

(“The

*7

(S.S.A.

July

2,

1996)

RFC

assessment

always consider and address medical source opinions.

-13-

must

If the RFC

assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.”); SSR
96-5p, 1996 WL 374183, *5 (S.S.A. July 2, 1996) (“Adjudicators
must weigh medical source statements under the rules set out in
20

[C.F.R.

§§]

404.1527

and

416.927,

providing

appropriate

explanations for accepting or rejecting such opinions.”).
ALJ

must

still

opinions,

consider

such

as

the

various
evidence

factors
upon

when

which

weighing

the

The
these

non-treating

sources’ opinions are based and the opinions’ consistency with
the medical record, even if the ALJ does not have to document
this analysis.

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

(6).
Regarding
court

finds

the

that

opinions
the

ALJ

from

the

properly

examining
weighed

sources,

these

the

opinions.

First, the ALJ was not required to explain the basis of the
weight he gave these opinions.
Second,

the

ALJ’s

reliance

See Martin, 658 F. App'x at 259.
upon

Dr.

Gammel’s

opinion

was

justified due to the thoroughness of the exam upon which the
opinion was based.

See 20 C.F.R. § 404.1527(c)(3) (“The more a

medical source presents relevant evidence to support a medical
opinion, particularly medical signs and laboratory findings, the
more weight we will give that medical opinion.”); 20 C.F.R. §
416.927(c)(3).

Third, the ALJ’s reason for giving Dr. Yates’s

opinion

weight,

little

that

it

-14-

was

inconsistent

with

other

opinions, was a valid basis for discounting the opinion.
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

to

that

medical

opinion.”);

20

C.F.R.

§

416.927(c)(4); Justice v. Comm'r Soc. Sec. Admin., 515 F. App'x
583, 588 (6th Cir. 2013) (“In a battle of the experts, the
agency decides who wins.”).
The court also finds that the ALJ
opinions of the non-examining sources.

properly weighed

the

Despite the fact that

ALJs do not have to give good reasons for the weight they assign
to the opinions of non-treating sources, when an ALJ gives more
weight to the opinion of a non-examining source who did not
review a claimant’s complete case record than to later opinions
from other medical sources who typically merit more deference,
the ALJ must provide “some indication that the ALJ at least
considered”

the

date

of

the

non-examining

source’s

opinion.

Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016)
(quoting Blakley v. Comm'r Of Soc. Sec., 581 F.3d 399, 409 (6th
Cir. 2009)).

Here, the ALJ indicated that he had considered

when the opinions were written by stating that the new evidence
acquired

after

the

state

consultants’

would not have altered the opinions.

opinions

were

written

The only sources to opine

about Massey’s condition at a later date than the non-examining
sources were Dr. Gammel and Dr. Jennings.

-15-

The opinion of the

former corresponds with the opinion of the state consultant.
The

opinion

of

the

latter

merits

described in the previous section.

no

weight

for

the

reasons

Therefore, the court finds

that the ALJ complied with procedural requirements when weighing
the opinions of the various medical sources in Massey’s records
and that the weight he gave these opinions was supported by
substantial

evidence.

Accordingly,

the

ALJ’s

step-four

determination was supported by substantial evidence.
III. CONCLUSION
For the foregoing reasons, the Commissioner’s decision that
Massey is not disabled is affirmed.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
April 17, 2018

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