United States District Court, M.D. Tennessee, Northeastern Division
Honorable Aleta A. Trauger, United States District Judge
REPORT AND RECOMMENDATION
BROWN UNITED STATES MAGISTRATE JUDGE
brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3), seeking judicial review of the Social Security
Commissioner's denial of her applications for disability
insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act
(“Act”). For the following reasons, the
Magistrate Judge RECOMMENDS that Plaintiff's Motion
for Summary Judgment (Doc. 7) be DENIED and the
Commissioner's decision be AFFIRMED.
Plaintiff's second application for disability insurance
benefits and supplemental security income. She filed her
previous application on June 9, 2009. (AR, p.
296). After an administrative hearing
(Id. at 265-290), her application was denied on
February 8, 2011. (Id. at 293-308). Her most recent
application (Id. at 480-489) was denied initially
and on reconsideration (Id. at 309-310, 375-376).
Administrative hearings were convened on October 29, 2014
(Id. at 231-264) and April 29, 2015 (Id. at
208-230). The presiding administrative law judge
(“ALJ”) issued an unfavorable decision on June
16, 2015. (Id. at 184-207). The Appeals Council
declined to review the ALJ's decision. (Id. at
1-7). Plaintiff appealed the Commissioner's
decision to this Court. (Doc. 1). The matter was referred to
the Magistrate Judge. (Doc. 9). Presently pending is
Plaintiff's fully briefed Motion for Summary
Judgment (Docs. 7, 7-1, 8).
REVIEW OF THE RECORD
parties and the ALJ thoroughly summarized the medical and
testimonial evidence of record. To the extent specific
portions of the record are relevant, they are discussed in
the analysis of the claims of error below. Upon review of the
record and two administrative hearings, the ALJ made the
following findings of fact and conclusions of law. Plaintiff
was insured under the Act through June 30, 2013. (AR, p.
190). She had not engaged in substantial gainful activity
since February 9, 2011. (Id.) She suffered from
several severe impairments, but she did not have an
impairment or combination of impairments that satisfied the
criteria for a listed impairment. (Id.).
Plaintiff's residual functional capacity
(“RFC”) permitted her:
to perform sedentary work as defined in 20 CFR 404.1567(a)
and 416.967(a) except that she would be precluded from
climbing ladders, ropes, or scaffolds; she could no more than
occasionally bend, stoop, bend from the waist to the floor,
crouch, crawl, kneel, or climb stairs or ramps; she would be
precluded from no more than frequent gross and fine
manipulation; she could not work around hazards such as
dangerous or moving machinery or unprotected heights; she
would be able to carry out simple instructions; she would be
limited to no more than occasional changes in the workplace;
she would be limited to occasional interaction with the
public, coworkers, and supervisors; she would require the use
of a cane for ambulation; and she could not operate motor
(Id. at 191) (emphasis omitted). The ALJ
additionally found Plaintiff could not perform any past
relevant work, but she could perform other work in the
national economy given her age, education, work experience,
and RFC. (Id. at 200). Finally, the ALJ concluded
Plaintiff was not disabled for purposes of the Act from
February 9, 2011, to the date of the decision. (Id.
CONCLUSIONS OF LAW
Standard of Review
Court's review of the Commissioner's final disability
decision is limited to determining whether the decision is
supported by substantial evidence and whether the decision
was made using the correct legal standards. Miller,
811 F.3d at 833 (quoting Blakley v. Comm'r of Soc.
Sec., 581 F.3d 399, 405 (6th Cir. 2009)).
“Substantial evidence is less than a preponderance but
more than a scintilla; it refers to relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion.” Gentry v. Comm'r of Soc.
Sec., 741 F.3d 708, 722 (6th Cir. 2014) (citing
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007)). Though the ALJ's decision may otherwise
be supported by the record, failure to follow the
agency's rules and regulations may show a lack of
substantial evidence. Id. (quoting Cole v.
Astrue, 661 F.3d 931, 937 (6th Cir. 2011)).
regulations implementing the Act set forth a five-step test
for determining whether a claimant is disabled:
(1) the claimant is not disabled if she is engaged in
substantial gainful activity;
(2) the claimant is not disabled if she does not have a
severe medically determinable impairment that meets duration
(3) the claimant is presumed disabled if she suffers from a
listed impairment, or its equivalent, for the proper
(4) the claimant is not disabled if based on her RFC she can
perform past relevant work; and
(5) the claimant is not disabled if she can perform other
work based on her RFC, age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(1), (4), 416.920(a)(1),
(4). The burden of proof rests on the claimant for the first
four steps, and the burden shifts to the Commissioner at step
five. Johnson v. Comm'r of Soc. Sec., 652 F.3d
646, 651 (6th Cir. 2011) (citing Wilson v. Comm'r of
Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)).
CLAIMS OF ERROR
submits five claims of error: (1) the ALJ should have
concluded Plaintiff satisfied the listings at step three of
the evaluation; (2) the ALJ gave too much weight to a
non-examining state examiner's opinion; (3) the ALJ
should have assigned a more-restrictive RFC to Plaintiff; (4)
the ALJ should have adopted vocational expert testimony
concerning a more-limited RFC than selected by the ALJ; and
(5) the ALJ erred by finding Plaintiff less than credible.
(Doc. 7-1, pp. 3, 13-24).
Application of the Listings
first argues she is entitled to disability benefits under
listings 1.02, 1.04, and 12.06. (Id. at 13-16).
Specifically, she contends the ALJ should have given
controlling weight to opinion evidence submitted by her
treating physician, Dr. Harold Lowe, in which he found she
satisfied these listings (AR, pp. 1124-1125, 1128). (Doc.
7-1, pp. 13-16).
third step of the disability evaluation process, the ALJ
considers the medical severity of the claimant's
impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). The claimant is “disabled”
for purposes of the Act if her impairments meet or medically
equal an impairment listed in Appendix 1 to the regulations.
Id. The claimant bears the burden of establishing
the elements of the listing are satisfied. Foster,
279 F.3d at 354.
evidence submitted by a treating physician should be given
controlling weight if the opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other
substantial evidence in [the] case record.” 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). Even if a
treating provider's opinion is not entitled to
controlling weight, the ALJ should nevertheless give the
opinion the weight it deserves taking the following factors
into consideration: the length of the treatment relationship
and frequency of examination, the nature and extent of the
treatment relationship, whether the opinion is supported by
medical evidence, whether the opinion is consistent with the
record as a whole, the source's specialization, and any
other relevant factors. Id. §§
404.1527(c), 416.927(c). Ultimately, the ALJ must provide
“good reasons” for the weight selected, and these
reasons need to be supported by the evidence in the record.
Id. §§ 404.1527(c)(2), 416.927(c)(2); SSR
96-2p, 1996 WL 374188, at *5 (S.S.A. July 2, 1996).
Listings 1.02 (Major Dysfunction of a Joint) and 1.04