United States District Court, W.D. Tennessee, Western Division
VICTOR B. SHEPHARD, Plaintiff,
CAROLYN W. COLVIN, Defendant.
ORDER AFFIRMING THE COMMISSIONER'S
PHAM United States Magistrate Judge
the court is plaintiff Victor B. Shephard's appeal from a
final decision of the Commissioner of Social
Security(“Commissioner”) denying his
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 October 6, 2016, the
parties consented to the jurisdiction of the United States
magistrate judge pursuant to 28 U.S.C. § 636(c). (ECF
No. 10.) 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.
of 2009, Shephard applied for disability benefits under Title
II and Title XVI of the Act, alleging disability beginning on
January 1, 2008. (R. at 219-20.) The Social Security
Administration (“SSA”) denied these claims
initially. (R. at 70-71.) On January 15, 2013, Shephard
reapplied for disability under Title II and Title XVI,
alleging disability beginning on January 1, 2010, due to
depression, special education, and an injured back. (R. at
190, 197, 271.) The SSA denied these applications initially
and upon reconsideration. (R. at 94-95, 120-21.) At
Shephard's request, a hearing was held before an
Administrative Law Judge (“ALJ”) on November 17,
2014. (R. at 33-69.) On December 24, 2014, the ALJ issued a
decision denying Shephard's request for benefits after
finding that Shephard was not under a disability because he
retained the residual functional capacity (“RFC”)
to perform work existing in significant numbers in the
national economy. (R. at 8-32.) On March 21, 2016, the
SSA's Appeals Council denied Shephard's request for
review. (R. at 1.) Therefore, the ALJ's decision became
the final decision for the Commissioner. (Id.)
Subsequently, on May 18, 2016, Shephard filed the instant
action. (ECF No. 1.) Shephard argues that the ALJ's RFC
determination is not supported by substantial evidence
because the ALJ improperly weighed the medical source
opinions and failed to explain the impact that Shephard's
major depressive disorder had upon his RFC. (ECF No. 19.)
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. §§