United States District Court, M.D. Tennessee, Nashville Division
CHRISTOPHER A. FROST, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
JEFFREY S. FRENSLEY United States Magistrate Judge.
a civil action filed pursuant to 42 U.S.C. § 405(g), to
obtain judicial review of the final decision of the
Commissioner of Social Security denying Plaintiff Disability
Insurance Benefits ("DIB"), as provided under Title
II of the Social Security Act ("the Act"). The case
is currently pending on Plaintiff's "Motion for
Judgment Upon the Administrative Record." Docket No. 14.
Plaintiff contemporaneously filed a supporting memorandum of
law. Docket No. 15. Defendant has filed a Response, arguing
that the decision of the Commissioner was supported by
substantial evidence and should be affirmed. Docket No. 16.
reasons stated below, the undersigned recommends that
Plaintiff's "Motion for Judgment Upon the
Administrative Record" be DENIED, and that the decision
of the Commissioner be AFFIRMED.
filed his application for Disability Insurance Benefits
("DIB") on December 7, 2011, with a protective
filing date of November 29, 2011, alleging that he had been
disabled since October 31, 2009, due to schizoaffective
disorder, depression, and memory issues. See, e.g.,
Docket No. 12, Attachment ("TR"), pp. 87, 193, 261,
Plaintiff's application was denied both initially (TR 87)
and twice upon reconsideration (TR 88, 89). Plaintiff
subsequently requested (TR 107) and received (TR 30-39,
40-77, 78-83) three hearings. Plaintiff's initial hearing
was conducted on October 3, 2013, by Administrative Law Judge
("ALJ") Renee S. Andrews-Turner. TR 78-83.
Plaintiff arrived at that hearing without counsel; the ALJ
advised Plaintiff of his right to counsel; Plaintiff
requested time to seek counsel; the ALJ granted
Plaintiff's request and adjourned the hearing.
Id. Plaintiff's second hearing was conducted on
January 9, 2014, again by ALJ Andrews-Turner. TR 40-77.
Plaintiff and vocational expert ("VE"), Kenneth
Anchor, appeared and testified. Id. ALJ
Andrews-Turner subsequently conducted a third, supplemental,
hearing on May 28, 2014. TR 30-39. Plaintiff and VE Chelsea
Brown appeared, and VE Brown testified. Id.
27, 2014, the ALJ issued a decision unfavorable to Plaintiff,
finding that Plaintiff was not disabled within the meaning of
the Social Security Act and Regulations. TR 8-23.
Specifically, the ALJ made the following findings of fact:
1. The claimant last met the insured status requirements of
the Social Security Act on March 31, 2014.
2. The claimant did not engage in substantial gainful
activity during the period from his alleged onset date of
October 31, 2009 through his date last insured of March 31,
2014 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the
following severe impairments: schizoaffective disorder,
adjustment disorder, generalized anxiety disorder, antisocial
personality disorder, major depressive disorder and
polysubstance dependence (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have
an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity to perform a
full range of work at all exertional levels but with the
following nonexertional limitations: he can understand and
remember simple instructions; he can frequently interact with
coworkers and supervisors; he can occasionally interact with
the general public; and can adapt to frequent changes in the
6. Through the date last insured, the claimant was capable of
performing past relevant work as a painter and laborer. This
work did not require the performance of work-related
activities precluded by the claimant's residual
functional capacity (20 CFR 404.1565).
7. The claimant's history of polysubstance dependence is
not material to the issue of disability.
8. The claimant was not under a disability, as defined in the
Social Security Act, at any time from October 31, 2009, the
alleged onset date, through March 31, 2014, the date last
insured (20 CFR 404.1520(f)).
21, 2014, Plaintiff timely filed a request for review of the
hearing decision. TR 7. On December 2, 2015, the Appeals
Council issued a letter declining to review the case (TR
1-3), thereby rendering the decision of the ALJ the final
decision of the Commissioner. This civil action was
thereafter timely filed, and the Court has jurisdiction. 42
U.S.C. § 405(g). If the Commissioner's findings are
supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
REVIEW OF THE RECORD
parties and the ALJ have thoroughly summarized and discussed
the medical and testimonial evidence of record. Accordingly,
the Court will discuss those matters only to the extent
necessary to analyze the parties' arguments.
CONCLUSIONS OF LAW
Standard of Review
Court's review of the Commissioner's decision is
limited to the record made in the administrative hearing
process. Jones v. Sec'y of Health & Human
Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). The purpose
of this review is to determine: (1) whether substantial
evidence exists in the record to support the
Commissioner's decision, and (2) whether any legal errors
were committed in the process of reaching that decision.
Landsaw v. Sec'y of Health & Human Servs.,
803 F.2d 211, 213 (6th Cir. 1986).
evidence" means "such relevant evidence as a
reasonable mind might accept as adequate to support the
conclusion." Her v. Comm'r of Soc. Sec.,
203 F.3d 388, 389 (6th Cir. 1999), citing Richardson v.
Perales, 402 U.S. 389, 401 (1971). "Substantial
evidence" has been further quantified as "more than
a mere scintilla of evidence, but less than a
preponderance." Bell v. Comm'r of Soc.
Sec., 105 F.3d 244, 245 (6th Cir. 1996), citing
Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229
reviewing court does not substitute its findings of fact for
those of the Commissioner if substantial evidence supports
the Commissioner's findings and inferences. Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). In fact,
even if the evidence could also support a different
conclusion, the decision of the ALJ must stand if substantial
evidence supports the conclusion reached. Her, 203
F.3d at 389, citing Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997). If the Commissioner did not consider the
record as a whole, however, the Commissioner's conclusion
is undermined. Hurst v. Sec'y of Health & Human
Servs., 753 F.2d 517, 519 (6th Cir. 1985), citing
Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).
reviewing the decisions of the Commissioner, courts look to
four types of evidence: (1) objective medical findings
regarding Plaintiff's condition; (2) diagnoses and
opinions of medical experts; (3) subjective evidence of
Plaintiff's condition; and (4) Plaintiff's age,
education, and work experience. Miracle v.
Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
Proceedings At The Administrative Level
claimant carries the ultimate burden to establish an
entitlement to benefits by proving his or her "inability
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to last for a continuous period of not
less than 12 months." 42 U.S.C. § 423(d)(1)(A).
"Substantial gainful activity" not only includes
previous work performed by Plaintiff, but also, considering
Plaintiff's age, education, and work experience, any
other relevant work that exists in the national economy in
significant numbers regardless of whether such work exists in
the immediate area in which Plaintiff lives, or whether a
specific job vacancy exists, or whether Plaintiff would be
hired if he or she applied. 42 U.S.C. § 423(d)(2)(A).
administrative level of review, the claimant's case is
considered under a five-step sequential evaluation process
summarized as follows:
(1) If the claimant is working and the work constitutes
substantial gainful activity, benefits are automatically
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a
"severe" impairment), then he or she is not
(3) If the claimant is not working and has a severe
impairment, it must be determined whether he or she suffers
from one of the "listed" impairments or its
equivalent. If a listing is met or equaled, benefits
are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level
impairments, it must be determined whether the claimant can
return to the job he or she previously held in light of his
or her residual functional capacity (e.g., what the claimant
can still do despite his or her limitations). By showing a
medical condition that prevents him or her from returning to
such past relevant work, the claimant establishes a prima
facie case of disability.
(5) The burden then shifts to the Commissioner to establish
the claimant's ability to work by proving the existence
of a significant number of jobs in the national economy which
the claimant could perform, given his or her age, experience,
education, and residual functional capacity.
See, e.g., 20 CFR §§ 404.1520, 416.920.
See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th
Commissioner's burden at the fifth step of the evaluation
process can be satisfied by relying on the medical-vocational
guidelines, otherwise known as "the grid, " but
only if the claimant is not significantly limited by a
nonexertional impairment, and then only when the
claimant's characteristics identically match the
characteristics of the applicable grid rule. Moon,
923 F.2d at 1181; 20 CFR § 404, Subpt. P, App. 2, Rule
200.00(e)(1), (2). See also Damron v. Sec'y of Health
& Human Servs., 778 F.2d 279, 281-82 (6th Cir.
1985). Otherwise, the grid cannot be used to direct a
conclusion, but only as a guide to the disability
determination. Id. In such cases where the grid does
not direct a conclusion as to the claimant's disability,
the Commissioner must rebut the claimant's prima facie
case by coming forward with particularized proof of the
claimant's individual vocational qualifications to
perform specific jobs, which is typically obtained through
vocational expert testimony. See Varley v. Sec'y of
Health & Human Servs., 820 F.2d 777, 779 (6th Cir.
determining residual functional capacity for purposes of the
analysis required at stages four and five above, the
Commissioner is required to consider the combined effect of
all the claimant's impairments: mental and physical,
exertional and nonexertional, severe and nonsevere.
See 42 U.S.C. § 423(d)(2)(B).
Plaintiff's Statement Of Errors
contends that the ALJ erred by: (1) improperly considering
and weighing the medical opinion evidence; (2) improperly
finding Plaintiff's statements about his impairments to
not be fully credible, without considering how they support
the opinions of his sources and without complying with the
Regulations and relevant case law; (3) declaring
Plaintiff's physical impairments to be non-severe without
considering the exact degree of limitations present and how
these limitations fit into Plaintiff's overall residual
functional capacity; and (4) not accepting VE testimony in
response to hypothetical questions based on the limitations
in the medical opinion evidence of Ms. Brown and Dr. Surber,
which would result in no jobs for an individual with
Plaintiff's impairments. Docket No. 15. Accordingly,
Plaintiff maintains that, pursuant to 42 U.S.C. §
405(g), the Commissioner's decision should be reversed,
or in the alternative, remanded. Id.
Sentence four of § 405(g) states as follows:
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
42 U.S.C. §§ 405(g), 1383(c)(3).
cases where there is an adequate record, the Secretary's
decision denying benefits can be reversed and benefits
awarded if the decision is clearly erroneous, proof of
disability is overwhelming, or proof of disability is strong
and evidence to the contrary is lacking."
Mowery v. Heckler, 771 F.2d 966, 973 (6th
Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues
have been resolved and the record adequately establishes a
plaintiff's entitlement to benefits. Faucher v.
Sec'y of Health & Human Servs., 17 F.3d
171, 176 (6th Cir. 1994). See also Newkirk v.
Shalala, 25 F.3d 316, 318 (6th Cir. 1994).
Weight Accorded to Medical Opinion Evidence
maintains that the ALJ failed to properly consider and weigh
the medical opinions of record. Docket No. 15, p. 9.
Specifically, Plaintiff argues that the ALJ failed to analyze
the opinion of Plaintiff's treating medical provider, Dr.
Michael Carter, in the manner set forth by 20 CFR §
404.1527(c) and relevant case law, to determine whether Dr.
Carter's opinion is supported by objective findings and
consistent with substantial evidence. Id. at 10.
Plaintiff contends that the ALJ erroneously afforded only
little weight to Dr. Carter's opinion because Dr. Carter
is not trained in the field of mental health and because his
opinion was inconsistent with the Mental Health Cooperative
“(MHC”) treatment records. Id. Plaintiff
asserts that Dr. Carter's opinion and limitations are, in
fact, consistent with MHC's records. Id.
also argues that the ALJ improperly gave great weight to the
opinion of the medical expert, Calvin Vanderplate, Ph.D., who
simply reviewed Plaintiff's records, because the ALJ did
not discuss anything specific in Dr. Vanderplate's
opinion that could have led to the ALJ assigning his opinion
great weight. Id. at 11. Plaintiff further maintains
that Dr. Vanderplate made legal conclusions that were not
within his purview to make, such as stating that
Plaintiff's report of symptoms and limitations was not
fully credible. Id., citing TR 22, 683. Plaintiff
argues that credibility is a determination to be made by the
ALJ, rather than a medical expert. Id. Plaintiff
also argues that Dr. Vanderplate improperly assigned weight
to the opinions of other providers who had completed Medical
Source Statements in this matter. Id.
next maintains that the ALJ erroneously gave great weight to
the opinion of consultative examiner, James Scott, M.A.,
without discussing the discrepancies in Mr. Scott's two
reports, prepared two years apart. Id., citing TR
21. Plaintiff further argues that the ALJ erred by not
discussing Mr. Scott's status as a non-acceptable medical
source under 20 CFR §404.1513 and 404.913. Id.
additionally contends that the ALJ failed to discuss or
explain what weight was given to the opinion of consultative
examiner, Jerry Surber, M.D., instead simply reciting Dr.
Surber's examination results and assigned limitations
with no further analysis. Id. at 14. Plaintiff
finally contends that the ALJ erred by not discussing the
report of Plaintiff's nurse practitioner, Ashley Brown,
A.P.N., W.S.N., R.N., and not explaining what weight, if any,
was given to her opinion. Id. at 11-12.
responds that the ALJ properly evaluated all of the relevant
medical opinions in a manner consistent with SSA regulations
and policies. Docket No. 16, p. 4. Specifically, Defendant
maintains that the ALJ correctly considered the opinion of
Dr. Carter and determined that it was due little weight.
Id. at 6, citing TR 19, 22. Defendant
states that Dr. Carter's opinion consisted mainly of a
checklist response form, which was "not particularly
helpful." Id., referencing TR 655-56. Defendant
asserts that it was proper for the ALJ to discount Dr.
Carter's opinion because he is not a mental health
specialist and because his findings were inconsistent with
the records of Plaintiff's primary mental health care
providers at MHC. Id. at 7, citing TR 20,
22; Justice v. Comm'r of Soc. Sec., 515
F.App'x 583, 588 (6th Cir. 2013); Curler v.
Comm'r of Soc. Sec., 561 F.App'x 464, 472 (6th
Cir. 2014). Defendant maintains that Dr. Carter's
conclusion that Plaintiff would "perhaps" be
dangerous in the workplace was based on Plaintiff's
hallucinations, which Plaintiff's mental health
specialists stated were controlled by medication.
Id. at 8, citing TR 20, 563, 656.
argues that an ALJ may rely on the testimony of a medical
expert and give it great weight, and that in this case, the
ALJ properly granted great weight to the opinion of Dr.
Vanderplate. Id., referencing TR 22; Steagall v.
Comm'r of Soc. Sec., 596 F.App'x 377, 380 (6th
Cir. 2015). Defendant further contends that the ALJ properly
gave great weight to the opinion of Mr. Scott because his
opinion was consistent with the record as a whole.
Id. at 9, referencing TR 21. Defendant also
responds that the ALJ discussed the opinion of Dr. Surber and
properly gave it little weight because there was no medical
evidence to support Dr. Surber's findings. Id.
at 11, referencing TR 21. Defendant additionally
maintains that it was appropriate for the ALJ to not include
Ms. Brown's opinion because Ms. Brown's report was
dated after the expiration of Plaintiff's insured status.
Id. at 9, citing Johnson v. Comm'r of Soc.
Sec., 535 F.App'x 498, 509 (6th Cir. 2013).
Defendant further contends that the ALJ had already
appropriately evaluated and discussed the records from MHC,
where Ms. Brown had treated Plaintiff, and that Ms.
Brown's opinion would therefore have been similarly
evaluated. Id. at 9-10, citing TR 20,
regard to the evaluation of medical evidence, the Code of
Federal Regulations states:
Regardless of its source, we will evaluate every medical
opinion we receive. Unless we give a treating source's
opinion controlling weight under paragraph (c)(2) of this
section, we consider all of the following factors in deciding
the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to
the opinion of a source who has examined you than to the
opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to
opinions from your treating sources, since these sources are
likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s)
and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations. If we
find that a treating source's opinion on the issue(s) of
the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in your case
record, we will give it controlling weight. When we do
not give the treating source's opinion controlling
weight, we apply the factors listed in paragraphs (c)(2)(i)
and (c)(2)(ii) of this section, as well as the factors in
paragraphs (c)(3) through (c)(6) of this section in
determining the weight to give the opinion. . . .
(3) Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give
that opinion. The better an explanation a source provides for
an opinion, the more weight we will give that opinion . . . .
(4) Consistency. Generally, the more consistent an opinion is
with the record as a whole, the more weight we will give to
(5) Specialization. We generally give more weight to the
opinion of a specialist about medical issues related to his
or her area of specialty than to the opinion of a source who
is not a specialist.
. . .
20 CFR § 416.927(c) (emphasis added). See also
20 CFR § 404.1527(c).
must articulate the reasons underlying her decision to give a
medical opinion a specific amount of weight.See,
e.g., 20 CFR § 404.1527(d); Allen v. Comm'r
of Soc. Sec., 561 F.3d 646 (6th Cir. 2009); Wilson
v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004). The reasons must be supported by the evidence and must
be sufficiently specific so as to make clear to any