United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
Clifton L. Corker United States Magistrate Judge
matter is before the United States Magistrate Judge, with the
consent of the parties and under an order of reference [Doc.
16] pursuant to 28 U.S.C. § 636, for disposition and
entry of a final judgment. The plaintiff's application
for Disability Insurance Benefits under the Social Security
Act was administratively denied following a hearing before an
Administrative Law Judge [“ALJ”]. This is an
action for judicial review of that final decision of the
Commissioner. The plaintiff has filed a Motion for Judgment
on the pleadings [Doc. 12], and the defendant Commissioner
has filed a Motion for Summary Judgment [Doc. 14].
sole function of this Court in making this review is to
determine whether the findings of the Commissioner are
supported by substantial evidence in the record.
McCormick v. Secretary of Health and Human Services,
861 F.2d 998, 1001 (6th Cir. 1988).
“Substantial evidence” is defined as evidence
that a reasonable mind might accept as adequate to support
the challenged conclusion. Richardson v. Perales,
402 U.S. 389 (1971). It must be enough to justify, if the
trial were to a jury, a refusal to direct a verdict when the
conclusion sought to be drawn is one of fact for the jury.
Consolo v. Federal Maritime Commission, 383
U.S. 607 (1966). The Court may not try the case de
novo nor resolve conflicts in the evidence, nor decide
questions of credibility. Garner v. Heckler, 745
F.2d 383, 387 (6th Cir. 1984). Even if the
reviewing court were to resolve the factual issues
differently, the Commissioner's decision must stand if
supported by substantial evidence. Listenbee v. Secretary
of Health and Human Services, 846 F.2d 345, 349
(6thCir. 1988). Yet, even if supported by
substantial evidence, “a decision of the Commissioner
will not be upheld where the SSA fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial
right.” Bowen v. Comm'r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007).
applicable administrative regulations require the
Commissioner to utilize a five-step sequential evaluation
process for disability determinations. 20 C.F.R. §
404.1520(a)(4). Although a dispositive finding at any step
ends the ALJ's review, see Colvin v. Barnhart,
475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe
3. Do the claimant's severe impairments, alone or in
combination, meet or equal the criteria of an impairment set
forth in the Commissioner's Listing of Impairments (the
“Listings”), 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant's RFC, can he or she perform
his or her past relevant work?
5. Assuming the claimant can no longer perform his or her
past relevant work -- and also considering the claimant's
age, education, past work experience, and RFC -- do
significant numbers of other jobs exist in the national
economy which the claimant can perform?
20 C.F.R. § 404.1520(a)(4). A claimant bears the
ultimate burden of establishing disability under the Social
Security Act's definition. Key v. Comm'r of Soc.
Sec., 109 F.3d 270, 274 (6th Cir. 1997).
plaintiff alleges that he became disabled as of January 1,
2015. He is, and was at all times pertinent to this case, a
“younger” individual, being 43 years of age on
his alleged disability onset date and 45 years of age at the
present time. He has a high school education. There is no
dispute that he cannot return to any past relevant work.
received extensive medical treatment at both the VA Medical
Center in Johnson City, Tennessee, as well as with private
physicians. His medical history, his testimony at his
administrative hearing, and the testimony of the vocational
expert [“VE”] are adequately described in the
Commissioner's brief as follows:
On June 20, 2014, Dr. Barnes, Plaintiff's treating doctor
at Appalachian Orthopedics, performed a left shoulder
arthroscopy with rotator cuff repair on Plaintiff (Tr.
264-67). In December 2014, Dr. Barnes found that Plaintiff
could lift 40 pounds below shoulder level and sit and walk
for a continuous period (Tr. 161). Dr. Barnes indicated these
restrictions were not permanent, as Plaintiff had not yet
reached maximum medical improvement (Tr. 161). In the same
month, Dr. Bookout, another of Plaintiff's physicians,
opined that Plaintiff could lift no more than 40 pounds below
his shoulder level and perform no overhead lifting (Tr.
In December 2014 and January 2015, Plaintiff reported to Dr.
Barnes that he had joint pain but no muscle weakness, back
pain, swelling of the extremities, or exercise intolerance
(Tr. 246, 248). Plaintiff was not completing his home
exercises for his shoulder which included stretching and
range of motion exercises (Tr. 245-46, 249).
On January 22, 2015, Dr. Barnes opined that Plaintiff could
return to his regular work duties in two weeks (Tr. 246).
Plaintiff was anxious to return to work as a mail handler
(Tr. 246). Plaintiff reported that he had joint pain but no
muscle weakness, back pain, swelling of the extremities, or
exercise intolerance (Tr. 246). An electromyogram (EMG) was
normal and showed no evidence of a right cervical motor
neuropathy (Tr. 303).
On March 2, 2015, the Department of Veterans Affairs (VA)
determined that Plaintiff was entitled to 60%
service-connected disability on January 22, 2014, which would
increase to a 100% service-connected disability rating on
June 30, 2014, but revert back to 60% service-connected
disability on December 1, 2014 (Tr. 135).
In March 2015, Dr. Karbasi, a psychiatrist at the VA Medical
Center, noted that Plaintiff was seeking mental health
treatment but his primary interest seemed to be increasing
his disability rating (Tr. 680). Plaintiff's symptoms had
previously been treated with prescribed medication (Tr. 680).
Dr. Karbasi reviewed Plaintiff's records and noted that
he had not been previously diagnosed with any mental health
condition by any mental health professional other than
partner relational problems (Tr. 681). Plaintiff also
reported that he was filing for Social Security Disability
and “they were on his back” to get an evaluation
done (Tr. 681).
On March 27, 2015, Plaintiff completed a Function Report (Tr.
187). Plaintiff reported that he provided care for his 4-year
old son when his wife was working (Tr. 188). He prepared
meals, drove, mowed the lawn, and shopped in stores and by
mail (Tr. 189-90). Plaintiff also watched television, read,
and attended church (Tr. 191).
In April 2015, Dr. Wells, a specialist at Watauga
Orthopedics, saw Plaintiff for left shoulder pain (Tr. 582).
Plaintiff reported that he had no muscle aches or weakness,
arthralgias, or joint pain (Tr. 583). A magnetic resonance
imagining (MRI) scan of Plaintiff's cervical spine
revealed a disc protrusion at the C3-C4 level and C7-T1 facet
arthrosis with spurring, moderate right foraminal stenosis,
and mild impingement exiting the right C5 nerve root (Tr.
584). A lumbar spine MRI revealed a disc bulge at the L2-L3
level, with no impingement, and L5-S1 levels, with
anterolisthesis right formainal bulge, but no source for
left-sided radiculopathy (Tr. 584). Dr. Wells noted that
Plaintiff's lumbar spine showed no evidence of nerve root