United States District Court, M.D. Tennessee, Northeastern Division
ALETAA.TRAUGER, United States District Judge
before the court is the plaintiff's Motion for Judgment
on the Administrative Record (Docket Entry No. 15), to which
the defendant Commissioner of Social Security
(“Commissioner”) filed a response (Docket Entry
No. 17). Upon consideration of the parties' filings and
the transcript of the administrative record (Docket Entry No.
11),  and for the reasons given herein, the
court finds that the plaintiff's motion for judgment be
DENIED and that the decision of the Commissioner be AFFIRMED.
plaintiff, Charles Michael Sisco, filed an application for
Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act on June 22, 2011, alleging
disability onset as of July 31, 2009, due to diabetes, back
and neck problems, high blood pressure, and high cholesterol.
(Tr. 92, 196, 203, 261.) The plaintiff's claims were
denied at the initial level on September 16, 2011, and on
reconsideration on December 9, 2011. (Tr. 148-150, 154-57.)
The plaintiff subsequently requested de novo review
of his case by an administrative law judge
(“ALJ”). (Tr. 140-41, 147.) The ALJ heard the
case on April 1, 2013, when the plaintiff appeared with
counsel and gave testimony. (Tr. 92, 106-137.) At the
conclusion of the hearing, the matter was taken under
advisement until June 17, 2013, when the ALJ issued a written
decision finding the plaintiff not disabled. (Tr. 89-98.)
That decision contains the following enumerated findings:
1. The claimant meets the insured status requirements of the
Social Security Act through June 30, 2015.
2. The claimant has not engaged in substantial gainful
activity since July 31, 2009, the alleged onset date (20 CFR
404.1571 et seq.).
3. The claimant has a combination of impairments, which
considered together, is “severe”.
4. 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 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform the full range of light work
as defined in 20 CFR 404.1567(b).
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant is 48, which is defined as a younger
individual (20 CFR 404.1563).
8. The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not an issue in this case
because the claimant's past relevant work is unskilled
(20 CFR 404.1568).
10. Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 404.1569 and
11. The claimant has not been under a disability, as defined
in the Social Security Act, from July 31, 2009, through the
date of this decision (20 CFR 404.1520(g)).
August 12, 2014, the Appeals Council denied the
plaintiff's request for review of the ALJ's decision
(Tr. 1-6), thereby rendering that decision the final decision
of the Commissioner. This civil action was thereafter timely
filed, and the court has jurisdiction. 42 U.S.C. §
REVIEW OF THE RECORD
April 24, 2009, the plaintiff presented to Dr. Tersa L.
Lively for a follow-up on chronic pain syndrome and
hypertension. (Tr. 460.) The plaintiff reported taking
Percocet, which helped for the pain. Id. Dr. Lively
noted that the plaintiff had a history of arthritis in his
knees bilaterally, diabetes mellitus, hypertension, and
ruptured discs of the cervical and lumbar spine. Id.
Dr. Lively noted a history of alcohol use. Id. Dr.
Lively also noted that the plaintiff was positive for back
pain and bone/joint symptoms, but was negative for muscle
weakness, myalgias, neck stiffness and rheumatologic
manifestations. (Tr. 461.) The plaintiff's blood pressure
was 162/102. Id. The plaintiff's physical
examination revealed that the plaintiff was not in any
apparent distress, was well nourished and well developed, and
his extremities appeared normal. (Tr. 461-62.) The plaintiff
was prescribed Percocet 10mg-325mg one to two tablets every
eight hours, Gemfibrozil 600mg one tablet twice daily,
Lisinopril 20mg one tablet daily,
Lovastatin 40mg one tablet daily and Novolin
70-30. (Tr. 462.)
August 21, 2009, the plaintiff returned for a follow-up with
Dr. Lively. (Tr. 457.) Dr. Lively noted that the
plaintiff's diabetes was stable and that his chronic pain
was stable with current dosing and that he “has had no
problems.” Id. The plaintiff's blood
pressure was 152/94. (Tr. 458.) On November 20, 2009, the
plaintiff returned to see Dr. Lively. (Tr. 454.) As to his
chronic pain, the plaintiff reported that he was doing well
with his current medications and was not having any issues.
Id. Dr. Lively prescribed the plaintiff Valium 5mg
one tablet, three times daily to treat his anxiety. (Tr.
456.) Dr. Lively continued the plaintiff on his other
18, 2010, the plaintiff returned to see Dr. Lively for a
follow-up visit concerning neck pain and hypertension. (Tr.
451.) The plaintiff's blood pressure was 152/94. (Tr.
452.) Dr. Lively continued the plaintiff on his current
medications. (Tr. 453.) On April 14, 2011, the plaintiff saw
Dr. Lively for a follow-up visit. (Tr. 449.) The
plaintiff's blood pressure was 144/96. Id. The
plaintiff's examination results were unremarkable. (Tr.
Work Activity Report dated June 24, 2011, the plaintiff
reported that he worked 10-15 hours per week, performing odd
jobs such as mowing yards, repairing roofs or plumbing, and
doing small construction tasks. (Tr. 242, 244.) The plaintiff
stated that he avoided jobs that required heavy lifting. (Tr.
August 29, 2011, the plaintiff presented to Dr. Donita Keown
for a consultative examination. (Tr. 369.) The plaintiff
reported that his neck pain was constant, which radiated into
his shoulders, more so on the right than the left, making it
difficult for him to use his arms or turn his head.
Id. The plaintiff reported of pain radiating into
the mid thoracic spine and lower back, left buttock and right
hip. Id. The plaintiff complained that his right leg
would go numb at times. Id. The plaintiff attended a
pain clinic where he received narcotic medications.
Id. Dr. Keown reported that the plaintiff thought
that his neck problems started in 1998 and that his back
problems began when he was still working. Id. Dr.
Keown noted that the plaintiff was “very vague
regarding the onset and timing, ” and that he could not
get the plaintiff “to commit to a particular time
frame.” Id. The plaintiff's blood pressure
was 116/60, a musculoskeletal examination showed that his
range of motion was within normal limits, his cervical spine
had a full range of motion, straight leg raises were
negative, his strength was graded 5/5 in his left and right
hands, arms and legs, and his gait and station were within
normal limits. (Tr. 370-71.) Dr. Keown's impression was
that he had type 2 diabetes, uncomplicated; chronic spinal
complaints likely due to degenerative change with no physical
evidence for herniated disc with neural foraminal impingement
or stenosis; hypertension treated medically and dyslipidemia
treated medically. (Tr. 371.) Dr. Keown essentially opined
that the plaintiff could lift 51 to 100 pounds occasionally
and 21 to 50 pounds frequently; stand and/or walk up to seven
to eight hours in an eight hour workday; sit eight hours in
an eight hour workday; that the plaintiff had no limitations
as to the use of hands and feet; that the plaintiff could
climb stairs, climb ladders and balance frequently; and that
the plaintiff could stoop, kneel, crouch, and crawl
frequently. (Tr. 97, 372-74.)
Function Report dated October 7, 2011, the plaintiff reported
that he could lift up to twenty pounds. (Tr. 217.) On October
10, 2011, the plaintiff was treated by Charles S. Clifton, a
certified physician assistant, at Advanced Spine and Pain.
(Tr. 322.) The plaintiff complained of moderate pain in his
lower back and neck. Id. The plaintiff reported that
he did yard work, that he worked, that he watched his
granddaughter, and that he exercised daily. Id. The
plaintiff returned on November 8, 2011, complaining of joint
pain. (Tr. 319.) The plaintiff's physical examination
reflected that the plaintiff had tenderness and experienced
moderate pain with motion in his cervical and lumbar spine,
right shoulder and both knees. (Tr. 320.)
November 21, 2011, Stephen Hardison, M. A., a licensed senior
psychological examiner, completed a consultative
psychological examination of the plaintiff. (Tr. 343.)
Hardison observed that the plaintiff drove himself to the
evaluation, he ambulated independently, he did not have
difficulty providing information regarding his background and
present situation, his thought content was clear, he did not
appear in acute mental health distress, and he was
cooperative. Id. The plaintiff stated that he
“[got] along well with people in general.”
Id. The plaintiff reported that he had not drank
alcohol in almost one year and that he was a heavy drinker in
his “younger days, ” but that he had not drunk
heavily since the early 1990's. Id. The
plaintiff, however, reported receiving a DUI two years
plaintiff did not have health insurance and received medical
care through the health department. (Tr. 344.) Hardison noted
that the plaintiff suffered from diabetes, back and neck
problems, hypertension, and high cholesterol. Id.
The plaintiff also reported past incidents where he would
“black out, ” but was not specific as to the
plaintiff did not report any treatment through a mental
health clinic. Id. The plaintiff was prescribed
Valium for anxiety, stating that it kept him calm.
Id. The plaintiff reported having depressed mood
only when he does not get to see his grandchild, stating that
the longest he generally goes without seeing her was one
week. Id. The plaintiff reported “feeling
somewhat shaky at times” because of his back problems
and that he had issues with being nervous for about two years
because of him not having a job. Id. The plaintiff
denied having significant problems in focusing or
plaintiff completed high school and reported being in special
education for English. Id. The plaintiff's last
job was in the summer of 2011 for two weeks, where he poured
concrete for a construction company, and stopped working when
he “got sick.” Id. Prior to that, the
plaintiff, for approximately two years, worked for himself
doing “odds and ends, ” such as mowing grass and
power washing decks and siding for people. Id. The
plaintiff reported working the previous winter at Wal-Mart,
unloading trucks. Id. The plaintiff reported that he
“got sick and blacked out.” Id.
his daily activities, the plaintiff would occasionally drive
to Wal-Mart or to the grocery store, but stated that his
mother did most of the grocery shopping. Id. The
plaintiff periodically visited friends and during the summer,
they would “ride around and look for deer.”
Id. The plaintiff performed daily chores, such as
vacuuming, washing clothes, and washing dishes and putting
them up. Id. The plaintiff stated that he cooked two
or three days a week. Id. The plaintiff also stated
that he mowed the grass, would fix anything around the house
that needed repairing, and would take walks. Id. The
plaintiff would occasionally drive his mother to the doctor
in Knoxville. (Tr. 345.) The plaintiff reported that most
days he would sit around and watch television or read
“old books.” Id.
plaintiff's mental examination revealed an alert
individual. Id. The plaintiff's thought content
was clear. Id. Hardison opined that the plaintiff
likely functioned in the low average range of intelligence.
the plaintiff's functional assessment and vocational
implications, Hardison opined, as follows:
This evaluation indicated the ability to remember and carry
out simple one-and two-step instructions without significant
problems. His ability to remember and carry out somewhat more
detailed instructions would not appear more than mildly
limited. His ability to sustain concentration and attention
in a structured routine job setting would not appear
significantly limited. His ability to interact appropriately
with co-workers, supervisors, or the general public
consistently would not appear significantly limited.
The claimant's ability to respond appropriately to
changes in a very structured routine job setting, including
being aware of and take appropriate precautions regarding
normal hazards would not appear significantly limited. This
claimant's ability to make simple job-related decisions
would not appear significantly limited. His ability to make
more complex job-related decisions could be mildly limited.
The degree of disability based on his reported
medical-related issues would need assessment by a physician.
November 29, 2011, Norma Calway-Fagen, Ph. D., completed a
Psychiatric Review Technique and marked the box “12.06
Anxiety-Related Disorders” as the category upon which
the medical disposition was based. (Tr. 326.) Dr.
Calway-Fagen assigned the plaintiff the following
limitations: mild restriction of activities of daily living;
mild difficulties in maintaining social functioning; and mild
difficulties in maintaining concentration, persistence and
pace. (Tr. 336.)
follow-up visit with Charles Clifton on December 6, 2011, the
plaintiff reported that his pain medications allowed him to
be more active. (Tr. 325.) In another follow-up visit with
Clifton on February 1, 2012, the plaintiff reported that his
pain medications allowed him to take care of his grandchild
and to walk outside. (Tr. 317-18.) The plaintiff was
continued on Endocet and Percocet for his pain and an in
house drug screen was ordered. (Tr. 318.) On April 2, 2012,
Clifton noted “pain with range of motion in: neck
extension and rotation; back extension and lateral
flexion.” (Tr. 315.) The plaintiff was continued on his
pain medication. Id. On May 31, 2012, the plaintiff
returned for a follow-up visit with Clifton. (Tr. 628.) The
plaintiff stated that “the more he mows the more he
hurts” and that “he tries to be as active as he
can.” (Tr. 629.) The plaintiff was continued on
Percocet for his pain. Id.
28, 2012, the plaintiff was seen at Cumberland Medical System
for altered mental state. (Tr. 279-282.) The plaintiff was
reportedly disoriented and had speech problems. (Tr. 301.)
Neuropathy and chronic pain were noted. (Tr. 281.) Bilateral
carotid ultrasound revealed minimal narrowing of the right
and left carotid system. (Tr. 289.) A CT scan of the brain
was normal. (Tr. 290.) A chest x-ray showed mild degenerative
bone changes, no acute infiltrates, effusions or
pneumothoraces, and a normal size heart. (Tr. 291.) The
plaintiff's altered mental status was determined
resolved, and he was discharged home. (Tr. 303-04.)
18, 2012, the plaintiff received treatment at Volunteer
Behavioral Health Care System. (Tr. 523.) As the reasons for
seeking treatment, the plaintiff reported that he began
experiencing depression approximately three years earlier.
Id. The plaintiff also reported having anxiety. (Tr.
524.) The plaintiff reported abusing alcohol from 1989 to
2009. Id. The plaintiff was assessed with panic
disorder without agoraphobia, which was in partial remission
because of medications, and depressive disorder. (Tr. 532.)
The plaintiff was assigned a Global Assessment of Functioning
Scale (“GAF”) of 45 and was placed on Prozac 40mg.
(Tr. 549.) The plaintiff agreed to start therapy and case
management. Id. On August 1, 2012, the plaintiff
returned and reported that his pain level was a 4 out of 10
on pain medications and that he experienced depression 2 out
of 7 days and panic attacks 1 out of 7 days. (Tr. 556.) On
August 14, 2012, the plaintiff reported no depression and
that he had panic attacks 2 out of 7 days and that his pain
rated a 9 out of 10 with pain medications. (Tr. 558.)
August 27, 2012, the plaintiff returned to Dr. Lively with
anxiety. (Tr. 602.) Dr. Lively noted that the plaintiff was
oriented and demonstrated “the appropriate mood and
affect.” (Tr. 603.) Dr. Lively listed Valium 10mg as a
medication to be stopped that visit. (Tr. 604.) Dr. Lively
also completed a Medical Source Statement on August 27, 2012,
and opined that the plaintiff had the following limitations:
lifting and/or carrying a maximum of less than ten pounds
occasionally and less than ten pounds frequently; standing
and/or walking less than two hours in an eight-hour workday;
sitting about four hours in an eight-hour workday; occasional
kneeling and crouching; and no climbing, balancing, and
crawling. (Tr. 564-66.) Pushing and/or pulling was limited in
the upper and lower extremities. (Tr. 565.) Dr. Lively opined
that the plaintiff would periodically have to alternate
sitting and standing to relieve pain or discomfort,
explaining that these limitations were due to herniation at
¶ 4 and also in the cervical spine and that the
plaintiff had nerve damage (neuropathy) that was affected in
both the upper and lower extremities. Id. Dr. Lively
stated that the plaintiff would often experience pain severe
enough to interfere with attention and concentration.
Id. Dr. Lively opined that the plaintiff was
mentally capable of low stress jobs. Id. Reaching
and feeling were limited to frequently. Id.
Environmental restrictions included avoiding concentrated
exposure to extreme cold, extreme heat and vibration, and
avoiding all exposure to hazards (machinery, heights, etc.).
August 28, 2012, the plaintiff returned for a follow-up visit
with Charles Clifton at Advanced Spine and Pain. (Tr. 631.)
The plaintiff was assessed with back pain, visit for current
long term use of other drugs, degeneration of lumbar disc and
cervical intervertebral disc, neuralgia, neuritis and
radiculitis, unspecified. (Tr. 632.) The plaintiff stated
that he felt better with the pain medication. Id.
September 12, 2012, the plaintiff returned to Volunteer
Behavioral Health Care System. (Tr. 582.) The plaintiff was
prescribed Hydroxyzine and Prozac to treat his anxiety.
Id. The plaintiff stated that he did not have any
side effects from his medications. Id. The
plaintiff's mood was “dysphoric;” his thought
process was “organized;” his thought
content/perceptions were “normal;” and his
sensorium/memory was “impaired memory.” (Tr.
582-83.) On September 29, 2012, the plaintiff returned and
reported that ha had been looking for work and that he was
walking everyday. (Tr. 589.) The plaintiff reported
“depression 1/7, anxiety 2/7 days.” Id.
On November 6, 2012, the plaintiff reported that he played
with his granddaughter two to three times a week. (Tr.
580-81.) The plaintiff stated that he was struggling to do
simple chores, but reported that he was trying to walk each
day. (Tr. 581.) The plaintiff reported that he would black
out for no reason at times. Id.
January 7, 2013, the plaintiff reported spending time with
his family over the holidays, which made him the happiest.
(Tr. 651-52.) On January 17, 2013, in a follow-up visit with
Charles Clifton, the plaintiff stated that his pain
medication “allowed him to fish and have a better
life.” (Tr. 638.) Records from Volunteer Behavioral
Health Care System reflect that on January 29, 2013, the
plaintiff reported that he was very stressed about his
disability claim, stating that he could not work but would
try if it was the only way to keep his home. (Tr. 653-54). On
February 15, 2013, the plaintiff spoke by telephone to case
manager Brittany Brown at Volunteer Behavioral Health Care
System, reporting that he was expelled from the pain clinic
he was attending because illegal drugs were found in his
system. (Tr. 655.) The plaintiff initially denied using
illegal drugs, ...