United States District Court, M.D. Tennessee, Northeastern Division
Honorable Waverly D. Crenshaw, Jr., Chief United States
REPORT AND RECOMMENDATION
BROWN UNITED STATES MAGISTRATE JUDGE.
before the court is Plaintiff's motion for judgment on
the administrative record (Docket Entry No. 17), to which
Defendant Commissioner of Social Security
(“Commissioner”) filed a response (Docket Entry
No. 19). Upon consideration of the parties' filings and
the transcript of the administrative record (Docket Entry No.
11),  and for the reasons given herein, the
Magistrate Judge RECOMMENDS that
Plaintiff's motion for judgment be
DENIED and that the decision of the
Commissioner be AFFIRMED.
Jeffrey Charles Boles, filed an application for Disability
Insurance Benefits (“DIB”) under Title II and an
application for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security
Act on October 5, 2009, alleging disability onset as of
December 31, 2005, due to hepatitis C, left knee problems,
foot problems, bad back, obesity, right arm problems, liver
problems, and a broken pelvis. (Tr. 13, 56-59, 164).
Plaintiff's claims were denied at the initial level on
April 9, 2010, and on reconsideration on July 28, 2010. (Tr.
13, 63, 71, 75). Plaintiff subsequently requested de
novo review of his case by an administrative law judge
(“ALJ”). (Tr. 13, 77). The ALJ heard the case on
May 31, 2011, when Plaintiff appeared with counsel and gave
testimony. (Tr. 13, 27-51). Testimony was also received by a
vocational expert. (Tr. 51-55). At the conclusion of the
hearing, the matter was taken under advisement until July 13,
2011, when the ALJ issued a written decision finding
Plaintiff not disabled. (Tr. 10, 13-22). On June 14, 2012,
the Appeals Council denied Plaintiff's request for review
of the ALJ's decision (Tr. 1-5), thereby rendering that
decision the final decision of the Commissioner. Plaintiff
timely appealed to the United States District Court for the
Middle District of Tennessee, which on July 22, 2015 remanded
the action under sentence four of 42 U.S.C. § 405(g) for
further consideration of Plaintiff's obesity and the
medical opinion of treating physician Dr. Michael Cox. (Tr.
September 30, 2015, the Appeals Council directed that
Plaintiff's subsequently filed applications for DIB and
SSI on October 23, 2013 be rendered duplicate and ordered
that these claims be consolidated with the remanded action
and that a new decision be issued on all of the claims
consistent with the District Court's Order. (Tr.
729-731). On September 21, 2016, a different ALJ conducted a
video hearing, where Plaintiff, with counsel, and his mother,
Martha Boles, appeared and gave testimony. (Tr. 666-693).
Testimony was also received by a vocational expert. (Tr.
693-699). At the conclusion of the hearing, the matter was
taken under advisement until November 21, 2016, when the ALJ
issued a written decision finding Plaintiff not disabled.
(Tr. 605-631). That decision contains the following
1. The claimant meets the insured status requirements of the
Social Security Act through September 30, 2012.
2. The claimant has not engaged insubstantial gainful
activity since December 31, 2005, the alleged onset date (20
CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: morbid
obesity, depressive disorder, hepatitis C, partial amputation
of right little finger, history of fractured pelvis, spine
disorder, right knee disorder, right arm/elbow disorder,
lower extremity edema, hypertension, and generalized anxiety
disorder (20 CFR 404.1520(c) and 416.920(c)).
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, 404.1526,
416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a). The claimant can lift and
carry, push and pull 10 pounds occasionally and 10 pounds
frequently. With normal breaks in an eight-hour day, he can
sit for six hours, and stand and/or walk for two hours. The
claimant requires a cane to ambulate. The claimant can
frequently reach, push, and pull bilaterally; can
occasionally operate foot controls; can never climb ladders
or scaffolds; can never kneel or crawl; can occasionally
climb stairs and ramps; can occasionally crouch; can
frequently balance and stoop; should never be around
unprotected heights; and can tolerate frequent exposure to
moving mechanical parts and operating a motor vehicle. The
claimant can understand, remember and perform, simple and
one-to-three step detailed tasks; can concentrate and persist
for at least two hours at a time on these tasks, but not on
higher level tasks; can acceptably relate to co-workers and
supervisors on a frequent basis, and with the public on an
occasional basis; and can adapt to occasional changes in
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
7. The claimant was born on June 30, 1970 and was 35 years
old, which is defined as a younger individual age 18-44, on
the alleged disability onset date (20 CFR 404.1563 and
8. The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled, ” whether or
not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
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, 404.1569(a),
416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined
in the Social Security Act, from December 31, 2005, through
the date of this decision (20 CFR 404.1520(g) and
12. I have essentially complied with the order of the
District Court, summarized above, and set out in its entirety
at Exhibit 6A.
(Tr. 610, 611, 613, 629, 630, 631).
did not file written exceptions to the ALJ's decision
dated November 21, 2016, and the Appeals Council did not
assume jurisdiction. Thus, the ALJ's November 21, 2016
decision stands as the final decision of the Commissioner.
This civil action was thereafter timely filed, and the Court
has jurisdiction. 42 U.S.C. §§ 405(g) and
REVIEW OF THE RECORD
following summary of the medical record is taken from the
Medical records indicate a history of back problems. On
January 25, 2014, a CT of the cervical spine showed diffuse
spondylosis in an otherwise negative exam. On October 23,
2015, an MRI of the lumbar spine revealed low-grade
spondylosis at the L1-2 level with mild disc degeneration and
anterior marginal spurring. At this level, there is a minimal
posterior annular bulge, but no canal stenosis of foraminal
narrowing. There was no focal disc protrusion, significant
canal stenosis, or foraminal narrowing. In August 2016, an
examination revealed a decreased range of motion of the hips;
inability to walk on his toes; difficulty walking on his
heels, inability to squat and rise back up; and inability to
bend over and touch toes (Exhibits 22F, 27F, 32F, and 33F).
Medical records indicate a history of hypertension.
Examinations have revealed non-pitting lower extremity edema.
Treating physicians have prescribed appropriate medications.
In September 2014, the claimant was admitted for hypertension
and chest pain. A chest x-ray was normal. An EKG had some
flipped T waves. A thallium stress test was negative for
ischemia. Chemistries were normal. CBC was unremarkable, and
troponins were negative x3. Cardiologist Dr. Mike Lenhart
noted that his chest pain was noncardiac. In July 2016, an
ECG was normal (Exhibits 5F, 14F, 15F, 20F, 21F, 22F, 24F,
25F, 29F, and 32F).
Medical records also indicate a history of joint problems,
including the right arm/elbow, right knee, remote fractured
pelvis, and remote amputation of the distal phalanx of the
right 5th finger. He has undergone cortisone injections in
the right elbow and right knee. His treating physician
offered an arthrocentesis on his right leg, but the claimant
refused (Exhibits 1F and 2F).
Medical records also indicate a history of hepatitis C and
elevated LFTs; however, the claimant has not received any
treatment or required any hospitalization for this impairment
(Exhibits 5F, 20F, 21F, 24F, and 29F).
The claimant was consultatively examined on January 27, 2010
by Dr. Donita Keown. The examination revealed a height of
5'9" and weight estimated between 350 and 400
pounds. He had a blood pressure reading of 170/98. He had a
partial amputation of #5 right hand at PIP. He ambulated with
and without the piece of wood, which had been fashioned into
a cane and showed no difficulty getting up from a chair. Dr.
Keown opined lifting up to 100 pounds occasionally and 50
pounds frequently; carrying up to 50 pounds occasionally and
20 pounds frequently; standing for one hour continuously for
a total of seven hours in an eight-hour workday; walking for
45 minutes continuously for a total of six hours in an
eight-hour workday; sitting for two hours continuously for a
total of eight hours in an eight-hour workday; occasional
climbing of stairs and ramps; occasional climbing of ladders,
ropes, or scaffolds; occasional kneeling, crouching, and
crawling; and frequent stooping (Exhibit 6F).
The claimant wa1s also consultatively examined on April 9,
2016 by Dr. William Robinson, II. Dr. Robinson indicated that
the claimant first has hepatitis C with a normal abdominal
exam and few symptoms other than nausea. He has right knee
problems, where he has some chronic findings with some
crepitance. He has problems with his left foot with some
swelling here in the ankle but no heat or inflammation. He
has chronic back pain with a history of back pain since 2010
for which he is taking medication on a regular basis. His
exam shows some restrictions of lumbar and cervical ranges of
motion but a negative straight leg raising and normal
reflexes and sensation. He has right arm problems. By this,
likely, he is meaning problem with his right arm where he has
a scar and he has had surgery but has good ranges of motion,
good strength, and good fine motor control. This scar is due
to an old injury and surgery some years ago but relatively
few chronic problems from it. He has liver problems related
to hepatitis C as above. He has a history of broken pelvis,
perhaps making his backache somewhat worse. Restrictions due
to obesity, back pain, right knee and left ankle pain. Dr.
Robinson essentially opined lift and carry 21 to 50 pounds
occasionally and 11 to 20 pounds frequently; can sit for
eight hours, stand for seven hours, and walk for six hours;
bilaterally can frequently reach, push, and pull; can
occasionally use operation of foot controls; can never climb
ladders or scaffolds; can never kneel or crawl; can
occasionally climb stairs and ramps; can occasionally crouch;
can frequently balance and stoop; should never be around
unprotected heights; and can tolerate frequent exposure to
moving mechanical parts and operating a motor vehicle
Medical records also indicate that the claimant is obese. He
has had a weight around 368 pounds, height of 5'9",
and a body mass index (“BMI”) of 54.3 (Exhibit
32F). On January 6, 2016, however, Dr. Cox wrote a letter,
stating that the claimant's medical problems included
heart disease, essential hypertension and lower back pain. He
did not list obesity as a medical problem at this time
(Exhibit 30F/36). Later, on April 9, 2016, when the claimant
was examined by Dr. Robinson II, the claimant's weight
had decreased to 268 pounds (Exhibit 28F/3). A BMI of 30 or
above is considered obese. Therefore, in accordance with SSR
02-lp, the undersigned has considered the impact of obesity
on function, including the claimant's ability to perform
routine movement and necessary physical activity within a
work environment. The undersigned finds that the
claimant's obesity, combined with his severe impairments,
does limit his exertional and nonexertional activities such
that the claimant is limited to the residual functional
capacity stated above.
As for the claimant's mental impairments, besides
substance abuse treatment, the claimant did not start
treatment with appropriate medications, therapy, and case
management services until 2011. Treating practitioners have
diagnosed major depressive disorder, single episode, severe
without psychotic features; generalized anxiety disorder;
alcohol dependence in remission; and opioid dependence in
remission. They have also indicated global assessment of
functioning scores of 45 to 50, indicating serious symptoms
(Exhibits 15F, 16F, 23F, 25F, 26F, 29F, 31F, and 32F).
On June 14, 2010, a consultative exam was performed . . . by
examiner Mark Loftis, MSPE, which indicated the
claimant's gait and posture as normal, and his fine and
gross motor skills within the normal range. Mr. Loftis noted
his thought content and processes were logical and coherent,
he could spell “world” backwards and did serial
threes backwards four times. He is not currently under any
psychiatric care or taking any medication for depression or
anxiety. Mr. Boles reported feeling-partly depressed-and he
prefers to be at home. The assessment indicated the claimant
has completed four alcohol and drug treatment programs in the
past, and is currently being treated for narcotic addition,
which he reports in remission since 2006. Mr. Loftis opined
mild limitations in understanding and remembering, with
simple repetitive tasks not likely impaired; mild limitations
in concentration, persistence and ability to maintain a
competitive pace; moderate limitations in social
interactions; and moderate limitations in ability to adapt to
changes in most work situations (Exhibit 9F).
CONCLUSIONS OF LAW
Standard of Review
of the Commissioner's disability decision is narrowly
limited to determining whether the decision is supported by
substantial evidence and whether the Commissioner applied the
right legal standards in reaching the decision. 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)). “Substantial evidence
requires ‘more than a mere scintilla' but less than
a preponderance; substantial evidence is such ‘relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Miller v. Comm'r of
Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.
2001)). In determining whether substantial evidence supports
the Commissioner's findings, a court must examine the
record as a whole, “tak[ing] into account whatever in
the record fairly detracts from its weight.” Brooks
v. Comm'r of Soc. Sec., 531 F. App'x 636, 641
(6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d
383, 388 (6th Cir. 1984)). A reviewing court may not try the
case de novo, resolve conflicts in evidence, or
decide questions of credibility. See Garner, 745
F.2d at 387 (citing Myers v. Richardson, 471 F.2d
1265, 1268 (6th Cir. 1972)). The Commissioner's decision
must be affirmed if it is supported by substantial evidence,
“‘even if there is substantial evidence in the
record that would have supported an opposite
conclusion.'” Blakley v. Comm'r of Soc.
Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key
v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
“This is so because there is a ‘zone of
choice' within which the Commissioner can act, without
the fear of court interference.” Buxton, 246
F.3d at 773 (citations omitted); Ulman v. Comm'r of
Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012) (“As
long as the ALJ cited substantial, legitimate evidence to
support his factual conclusions, we are not to second-guess:
‘If the ALJ's decision is supported by substantial
evidence, then reversal would not be warranted even if
substantial evidence would support the opposite
conclusion.'”) (citation omitted). However, where
an ALJ fails to follow agency rules and regulations, the
decision lacks the support of substantial evidence,
“even where the conclusion of the ALJ may be justified
based upon the record.” Miller, 811 F.3d at
833 (citation and internal quotation marks omitted).
claimant has the ultimate burden of establishing his
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 result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); Jones v. Comm'r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003) (“[T]he claimant bears
the burden of proving the existence and severity of
limitations caused by her impairments and the fact that she
is precluded from performing her past relevant work.”).
The claimant's “physical or mental
impairment” must “result from anatomical,
physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory