United States District Court, W.D. Tennessee, Western Division
ORDER AFFIRMING THE COMMISSIONER'S
PHAM United States Magistrate Judge
the court is plaintiff Vernice Johnson's appeal from a
final decision of the Commissioner of Social
Security(“Commissioner”) denying her
application for disability insurance benefits under Title II
and Title XVI of the Social Security Act (“Act”),
42 U.S.C. §§ 401 et seq. On May 27, 2016,
the parties consented to the jurisdiction of the United
States magistrate judge pursuant to 28 U.S.C. § 636(c).
(ECF No. 8.) This case was subsequently reassigned to the
undersigned on March 13, 2017. For the reasons set forth
below, the decision of the Commissioner is affirmed.
April 11, 2013, and March 25, 2013, Johnson applied for
disability benefits under Title II and Title XVI of the Act.
(R. at 177, 182.) Johnson alleged disability beginning
February 28, 2013, due to diabetes and high blood pressure.
(R. at 182, 212.) The Social Security Administration
(“SSA”) denied these applications initially and
upon reconsideration. (R. at 70-71, 98-99.) At Johnson's
request, a hearing was held before an Administrative Law
Judge (“ALJ”) on March 10, 2015. On April 9,
2015, the ALJ issued a decision denying Johnson's request
for benefits after finding that she was not under a
disability because she retained the residual functional
capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy. (R. at 9-26.) On
January 19, 2016, the SSA's Appeals Council denied
Johnson's request for review. (R. at 1.) Therefore, the
ALJ's decision became the final decision for the
Commissioner. (Id.) Subsequently, on March 23, 2016,
Johnson filed the instant action. (ECF No. 1.) Johnson argues
that (1) the ALJ gave improper weight to the opinion of
medical examiner Paul Brown, Ph.D., (2) the ALJ should have
considered the effect of Johnson's obesity upon her RFC,
(3) the ALJ should not have given any weight to Johnson's
GAF score, and (4) the ALJ erred by not including a
function-by-function assessment in the RFC assessment.
CONCLUSIONS OF LAW
Standard of Review
42 U.S.C. § 405(g), a claimant may obtain judicial
review of any final decision made by the Commissioner after a
hearing to which she or he was a party. “The court
shall have power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g). Judicial review of the Commissioner's
decision is limited to whether there is substantial evidence
to support the decision and whether the Commissioner used the
proper legal criteria in making the decision. Id.;
Burton v. Comm'r of Soc. Sec., No. 16-4190, 2017
WL 2781570, at *2 (6th Cir. June 27, 2017); Cole v.
Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v.
Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Substantial evidence is more than a scintilla of
evidence but less than preponderance and is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Kirk v.
Sec'y of Health & Human Servs., 667 F.2d 524,
535 (6th Cir. 1981) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).
determining whether substantial evidence exists, the
reviewing court must examine the evidence in the record as a
whole and “must ‘take into account whatever in
the record fairly detracts from its weight.'”
Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.
1990) (quoting Garner v. Heckler, 745 F.2d 383, 388
(6th Cir. 1984)). If substantial evidence is found to support
the Commissioner's decision, however, the court must
affirm that decision and “may not even inquire whether
the record could support a decision the other way.”
Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994)
(quoting Smith v. Sec'y of Health &
Human Servs., 893 F.2d 106, 108 (6th Cir. 1989)).
Similarly, the court may “not try the case de novo,
resolve conflicts in the evidence or decide questions of
credibility.” Ulman v. Comm'r of Soc.
Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)).
The Commissioner, not the court, is charged with the duty to
weigh the evidence and to resolve material conflicts in the
testimony. Walters v. Comm'r of Soc. Sec., 127
F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921
F.2d 642, 644 (6th Cir. 1990); Prater v. Comm'r of
Soc. Sec., No. 114CV01221STATMP, 2017 WL 2929479, at *1
(W.D. Tenn. July 10, 2017).
The Five-Step Analysis
defines disability as the “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). Additionally,
section 423(d)(2) of the Act states,
An individual shall be determined to be under a disability
only if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any
individual), “work which exists in the national
economy” means work which exists in significant numbers
either in the region where such individual lives or in
several regions of the country.
the Act, the claimant bears the ultimate burden of
establishing an entitlement to benefits. Oliver v.
Comm'r of Soc. Sec., 415 Fed.Appx. 681, 682 (6th
Cir. 2011). The initial burden is on the claimants to prove
they have a disability as defined by the Act. Siebert v.
Comm'r of Soc. Sec., 105 Fed.Appx. 744, 746 (6th
Cir. 2004) (citing Walters, 127 F.3d at 529);
see also Born v. Sec'y of Health & Human
Servs., 923 F.2d 1168, 1173 (6th Cir. 1990). If the
claimant is able to do so, the burden then shifts to the
Commissioner to demonstrate the existence of available
employment compatible with the claimant's disability and
background. Born, 923 F.2d at 1173; see also
Griffith v. Comm'r of Soc. Sec., 582 Fed.Appx.
555, 559 (6th Cir. 2014).
to social security benefits is determined by a five-step
sequential analysis set forth in the Social Security
Regulations. See 20 C.F.R. §§ 404.1520, 416.920.
First, the claimant must not be engaged in substantial
gainful activity. See 20 C.F.R. §§ 404.1520(b),
416.920(b). Second, a finding must be made that the claimant
suffers from a severe impairment. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(5)(ii). In the third step, the
ALJ determines whether the impairment meets or equals the
severity criteria set forth in the Listing of Impairments
contained in the Social Security Regulations. See 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d). If
the impairment satisfies the criteria for a listed
impairment, the claimant is considered to be disabled. On the
other hand, if the claimant's impairment does not meet or
equal a listed impairment, the ALJ must undertake the fourth
step in the analysis and determine whether the claimant has
the RFC to return to any past relevant work. See 20 C.F.R.
§§ 404.1520(a)(4)(iv), (e), 416.920(a)(4)(iv). If
the ALJ determines that the claimant can return to past
relevant work, then a finding of not disabled must be
entered. Id. But if the ALJ finds the claimant
unable to perform past relevant work, then at the fifth step
the ALJ must determine whether the claimant can perform other
work existing in significant numbers in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4)(v), (g),
416.960(c)(1)-(2). Further review is not necessary if it is
determined that an individual is not disabled at any point in
this sequential analysis. 20 C.F.R. §§
Weight of Dr. ...