United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY 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
Supplemental Security Insurance (“SSI”), as
provided under Title XVI of the Social Security Act
(“the Act”), as amended. The case is currently
pending on Plaintiff's Motion for Judgment on the
Administrative Record. Docket No. 20. Plaintiff has filed an
accompanying Memorandum in Support of her Motion. Docket No.
21. Defendant has filed a Response, arguing that the decision
of the Commissioner was supported by substantial evidence and
should be affirmed. Docket No. 22.
reasons stated below, the undersigned recommends that
Plaintiff's Motion for Judgment on the Administrative
Record be DENIED, and that the decision of the Commissioner
filed her application for Supplemental Security Income
(“SSI”) on June 10, 2010, with a protective
filing date of April 18, 2010, alleging that she had been
disabled since January 10, 1990, due to back and neck
problems, colon problems, seizure disorder, high blood
pressure, and mental problems. See, e.g., Docket No.
12, Attachment (“TR”), p. 67, 77, 142.
Plaintiff's application was denied both initially (TR
66-67) and upon reconsideration (TR 68). Plaintiff
subsequently requested (TR 86-88) and received (TR 30-65) a
hearing. Plaintiff's hearing was conducted on April 13,
2012, by Administrative Law Judge (“ALJ”) Brian
Dougherty. TR 30. Plaintiff and Vocational Expert, Michelle
McBroom-Weiss, appeared and testified. Id.
21, 2012, 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 10-29.
Specifically, the ALJ made the following findings of fact:
1. The claimant has not engaged in substantial gainful
activity since April 18, 2010, the application date (20 CFR
416.971 et seq.).
2. The claimant has the following severe impairments:
lumbago; degenerative disc disease of the lumbar spine;
insomnia; joint pain of the leg; hypertension; seizure
disorder; headaches; reflux; cognitive disorder; major
depressive disorder; bipolar; anxiety; adjustment disorder
with anxiety; and depressed mood (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 416.967(b) except the claimant must avoid exposure to
hazards. The claimant is further able to understand, remember
and carry out simple instructions and is able to adapt to
gradual and infrequent changes in the workplace.
5. The claimant is capable of performing past relevant work
as a gluer. This work does not require the performance of
work-related activities precluded by the claimant's
residual functional capacity (20 CFR 416.965).
6. The claimant has not been under a disability, as defined
in the Social Security Act, since April 18, 2010, the date
the application was filed (20 CFR 416.920(f)).
30, 2012, Plaintiff timely filed a request for review of the
hearing decision. TR 8. On July 24, 2013, the Appeals Council
issued a letter declining to review the case (TR 1-6),
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 rejecting the
medical opinions of Plaintiff's treating nurse
practitioner, Ms. Vicki L. Mitchell, and consultative
examiner, Dr. Terry Edwards; (2) improperly assessing
Plaintiff's credibility, by not basing his decision on
substantial evidence, by using boilerplate language in
violation of 96-7p, by citing Plaintiff's drug-seeking
behavior and travel with her boyfriend, and by failing to
consider whether Plaintiff's failure to obtain mental
health treatment was due to her inability to afford care; (3)
failing to incorporate all of Plaintiff's impairments in
his Residual Functional Capacity determination; (4) relying
on VE testimony that was based on inadequate hypothetical
questions that did not contain all of Plaintiff's
limitations, and failing to ask the VE whether her testimony
was consistent with the DOT; (5) improperly determining that
Plaintiff could perform past relevant work, as
Plaintiff's past work as a gluer was not substantial
gainful activity, as well as finding that Plaintiff can
perform other work. Docket No. 21. 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.
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
Weight Accorded to the Medical Opinion Evidence
argues that the ALJ improperly rejected the medical opinions
of her treating nurse practitioner, Vicki L. Mitchell, F.N.P,
and consultative examiner, Terry Edwards, Ed.D. Docket No.
21, p. 48-52. With regard to Ms. Mitchell, Plaintiff contends
that the ALJ's rejection of her opinion is in violation
of applicable regulations and rulings and is not supported by
the record. Id. at 48. While acknowledging that Ms.
Mitchell is not an acceptable medical source, Plaintiff
argues that she is an “other source, ” as defined
by SSR 06-3p, which instructs that such opinions are
important and must be considered. Id.,
citing SSR 06-3p. Plaintiff further argues that an
evaluation of Ms. Mitchell's opinion, using the factors
provided by SSR 06-3p that are to be considered when
evaluating assessments from both acceptable and other
sources, would result in Ms. Mitchell's opinion being
given great weight. Id. at 48-49. Plaintiff
maintains that Ms. Mitchell's opinion is also consistent
with Plaintiff's treatment records, and “is in fact
the only physical assessment in the file, save those of the
two DDS non-examining consultants . . . .” Id.
at 49. In addition, Plaintiff contends that the ALJ's
reasons for rejecting Ms. Mitchell's opinion were
improper - namely, that the ALJ cherry-picked Ms.
Mitchell's notes without providing necessary context, put
on “his doctor's hat” to offer a medical
opinion, and attempted to discredit Ms. Mitchell by claiming
that she over-exaggerated Plaintiff's limitations in her
opinion “‘in a good-intentioned effort to assist
[Plaintiff] with obtaining disability benefits.'”
Id. at 50-51, citing TR 21.
responds that under the Regulations, Ms. Mitchell is not an
acceptable medical source and as such, she is prohibited from
providing medical opinions, and can only provide “an
opinion regarding her observations about
plaintiff's functional limitations as a result of an
impairment diagnosed by an acceptable medical source.”
Docket No. 22, p. 19-20, citing 20 CFR §
416.913(a), 20 CFR § 416.913(d), 20 CFR §
416.927(a)(2) (emphasis in original). Defendant argues that
the ALJ properly accorded Ms. Mitchell's opinion only
little weight because it was based primarily on
Plaintiff's own representations regarding Plaintiff's
symptoms, which the ALJ found to be not fully credible, and
because it is not supported by Plaintiff's treatment
records, including Ms. Mitchell's own records.
Id. at 20.
regard to Dr. Edwards, Plaintiff argues that although the ALJ
claimed that he was according considerable weight to Dr.
Edwards's opinion, he did not incorporate that opinion
into Plaintiff's RFC, leading to an erroneous finding
that Plaintiff is not disabled. Docket No. 21, p. 51-52.
Specifically, Plaintiff contends that “the VE testified
that the limitations noted by Dr. Edwards (specifically the
‘moderate to marked' impairment in focus and
concentration) would preclude performance of Ms. Staples'
past work as well as all of the other jobs the VE had
identified.” Id. at 51. Plaintiff further
contends that the ALJ's explanation for how he resolved
the contrast between Dr. Edwards's opinion and the RFC
ultimately determined for Plaintiff is insufficient:
“As one can see, the ALJ's solution is to
‘interpret' the impairment in focus and
concentration out of existence, a fancy trick if ever there
was one!” Id. at 52, citing TR 22.
responds that, despite according considerable weight to Dr.
Edwards's opinion, “the ALJ was not constrained to
give it controlling weight and to incorporate those parts of
Dr. Edward's [sic] opinion the ALJ disagreed
with.” Docket No. 22, p. 16. Additionally, Defendant
contends that the ALJ was not required to adopt Dr.
Edwards's opinion regarding Plaintiff's inability to
travel independently due to seizures. Id. at 17.
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 his 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
subsequent reviewers the weight the ALJ gave to the treating
source medical opinion and the reasons for that weight. SSR
medical record contains treatment notes from Ms. Mitchell,
F.N.P., of Self-Centered Primary Care and Weight Loss. TR
Regulations provide that the ALJ may properly:
[U]se evidence from other sources to show the severity of
your impairment(s) and how it affects your ability to work.
Other sources include, but are not limited to -
(1) Medical Sources not listed in paragraph (a) of this
section (for example, nurse-practitioners,
physicians' assistants, naturopaths, chiropractors,
audiologists, and therapists).
20 CFR § 404.1513(d) (emphasis added).
discussed Ms. Mitchell's opinion evidence as follows:
The claimant's primary care provider is nurse
practitioner Vicki L. Mitchell, who began treating the
claimant in October 2011. Ms. Mitchell has treated the
claimant for back pain, hip pain, hypertension, and
depression. In April 2012, Ms. Mitchell completed another
[sic] source statement in which she opined the
claimant is able to sit for one hour, stand/walk for 15-20
minutes, and must lie down and elevate her legs four hours in
an eight-hour work day. Ms. Mitchell opined the claimant
could lift five pounds up to one hour a day, and more than
five pounds less than one hour a day. Ms. Mitchell opined the
claimant could never stoop, kneel or crouch, and would miss
more than four days a month due to her impairments. Ms.
Mitchell stated the claimant suffered from severe depression,
anxiety, back pain with radiation, degenerative disk disease,
uncontrolled hypertension, seizure disorder, and insomnia.
(Exhibit 27F) From a mental standpoint, Ms. Mitchell opined
that the claimant is not capable of remembering work like
procedures; maintaining attention for two hours; maintaining
regular attendance; sustaining an ordinary routine without
special supervision; working in close proximity to others
without unduly distraction [sic]; complete a normal
workday without interruption from psychologically based
symptoms; perform at a consistent pace; accept instructions
and respond appropriately to criticism from supervisors; get
along with co-workers, respond to change; be aware of
hazards; understand; remember and carry out detailed
instructions; interact with the public; set realistic goals;
maintain socially appropriate behavior; travel to unfamiliar
places; and use public transportation due to her anxiety and
Despite these disabling impairments, there is no record that
Ms. Mitchell has referred the claimant to a specialist to
evaluate her orthopedic difficulties. In addition, despite
Ms. Mitchell's recommendations, the claimant has not
pursued formal therapy for her depression and anxiety.
Although Ms. Mitchell states the claimant's hypertension
is uncontrolled, Dr. Sukulovski noted the claimant's
blood pressure to be 125/85 in January 2011. (Exhibit 21F)
Ms. Bryant's opinion is inconsistent with the objective
medical evidence, including the treatment notes, which
indicate that the claimant's depression, hip pain and low
back pain only moderately limit her activities; that
medication is relieving most of her pain; and that the
severity of her pain is moderate 3/10 after
medication.26F, pgs 1, 3. Further, the course of
treatment pursued by the nurse practitioner has not been
consistent with what one would expect if the claimant were
truly limited to the very significant extent that the nurse
practitioner has listed in the other source statement.
It is not uncommon for a treating medical professional to
complete medical source statement forms that over-exaggerate
a claimant's limitations in a good-intentioned effort to
assist the claimant with obtaining disability benefits.
Unfortunately, when the treatment records do not support the
extremely severe degree of those limitations as listed on the
completed form, it is difficult to give much weight to the
opinion. This appears to be the case with Ms. Mitchell's
other source statements. In addition, there is the issue with
the claimant's underlying credibility with regard to her
representation of her symptoms. She has documented
drug-seeking behavior. In addition, she has not followed Ms.
Mitchell's recommendation to seek mental health therapy.
These facts detract from her overall credibility. Ms.
Mitchell's opinions with regard to the claimant's
physical and mental ...