United States District Court, E.D. Tennessee, Greeneville Division
REPORT AND RECOMMENDATION
CLIFTON L. CORKER, UNITED STATES MAGISTRATE JUDGE
matter is before the United States Magistrate Judge, under
the standing orders of the Court and 28 U.S.C. § 636 for
a report and recommendation. Plaintiff's claims for
Disability Insurance Benefits and Supplemental Security
Income were denied administratively by Defendant Commissioner
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 pro se Complaint [Doc. 2], asking the Court
to award him benefits, and Defendant Commissioner has filed a
Motion for Summary Judgment [Doc. 10]. Plaintiff has not
filed any other pleadings besides his complaint.
Standard of Review
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).
Sequential Evaluation Process
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). The burden
shifts to the Commissioner with respect to the fifth step if
the claimant satisfies the first four steps of the process.
See Jones v. Comm'r of Soc. Sec., 336 F.3d 469,
474 (6th Cir. 2003).
Background and Procedural History
was born in 1969 and was a younger person under the
applicable regulations at the time he filed his application
(Tr. 268). Plaintiff's prior relevant work experience
includes cleaner (medium, unskilled, DOT 381.687-018), car
salesman (light, skilled, 273.353-010), and casino dealer
(light, skilled, 343.464-010) (Tr. 73, 275, 342). He alleges
that he became disabled on February 1, 2009, due to
limitations from multiple herniated discs causing back pain,
a dislocated rotator cuff, sciatica in both legs, nerve pain,
fibromyalgia, traumatic head injuries, PTSD, poor reflexes,
depression, anxiety, and social disorder (Tr. 226, 273). His
insured status expired on June 30, 2014 (Tr. 30-31).
Accordingly, he must establish disability on or before that
date in order to be entitled to benefits. 20 C.F.R. §
April 2016, an ALJ conducted an evidentiary hearing in which
Plaintiff and a vocational expert (“VE”)
testified (Tr. 59-79). The ALJ found Plaintiff was not
disabled under the Act (Tr. 126-38). The Appeals Council
remanded the decision for further development of issues (Tr.
145-48). In September 2016, the ALJ again heard from
Plaintiff and a VE (Tr. 39-58). Again, the ALJ found
Plaintiff not disabled and denied benefits (Tr. 18-31).
Plaintiff now appeals to this Court.
Evidence in the Record
courts are not in the business of making arguments for
parties, even where a litigant proceeds pro se. See
Kim v. Obama, 615 Fed.Appx. 516, 517 (10th Cir.
2015) (“[W]e won't act as [a pro se
plaintiff's] advocate by formulating arguments or
scouring the record on his behalf.”). That
notwithstanding, as Plaintiff has not filed any motions in
this case, the Court will review the evidence in the record
to determine whether substantial evidence exists to support
the decision of the Commissioner.
Plaintiff's Physical Impairments
1991, Plaintiff injured his back while lifting weights while
employed by the United States Navy (Tr. 397-98). While he
continued to experience ongoing back pain from that injury,
in August 2008, a physical examination indicated
Plaintiff's strength and sensation were normal (Tr.
362-63). An MRI showed moderate degenerative disc disease
with a small central disc protrusion at the L5-S1 level (Tr.
401-02). A diffuse disc bulge with a tiny broad-based
protrusion was noted at ¶ 4-L5 level with bilateral
facet arthropathy noted at the last two levels (Tr. 402).
Plaintiff received multiple epidural blocks in 2009 and 2010
and was prescribed a TENS unit (Tr. 366-77, 468-69, 533-35,