United States District Court, M.D. Tennessee, Northeastern Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, UNITED STATES MAGISTRATE JUDGE.
a civil action filed pursuant to 42 U.S.C. § 405(g), to
obtain judicial review of the final decision of the
Commissioner of Social Security denying Plaintiff Disability
Insurance Benefits (“DIB”), as provided under
Title II of the Social Security Act (“the Act”).
The case is currently pending on Plaintiff's Motion for
Judgment on the Administrative Record. Docket No. 13.
Plaintiff has filed an accompanying Memorandum. Docket
No.13-1 . Defendant has filed a Response, arguing that the
decision of the Commissioner was supported by substantial
evidence and should be affirmed. Docket No. 14. Plaintiff has
filed a Reply. Docket No. 15.
reasons stated below, the undersigned recommends that
Plaintiff's Motion for Judgment on the Administrative
Record be DENIED, and that the decision of the Commissioner
filed his application for Disability Insurance Benefits
(“DIB”) on June 29, 2017 alleging that he had
been disabled since May 1, 2015, due to disc
“herniation” L5-S1-S2, chronic and severe
“hypothyroiditis, ” left and right hip injuries,
“radiculopathy, ” right and left lower
extremities, chronic left and right ankle lateral ligament
sprains, left and right elbow strain, cervical strain C4 -6
disc “herniation, ” post traumatic stress
disorder, major depressive disorder, and arthritis. See,
e.g., Docket No. 11, Attachment (“TR”), pp.
258-59, 274. Plaintiff's application was denied both
initially (TR 172) and upon reconsideration (TR 187).
Plaintiff subsequently requested (TR 198-199) and received
(TR 104-158) a hearing. Plaintiff's hearing was conducted
on March 29, 2018 by Administrative Law Judge
(“ALJ”) Michelle Thompson. TR 104. Plaintiff and
vocational expert (“VE”), Rebecca Hill, appeared
and testified. Id. Vanessa Jones, Plaintiff's
wife, also testified as a witness. Id.
April 18, 2018, the ALJ issued a decision unfavorable to
Plaintiff, finding that Plaintiff was not disabled within the
meaning of the Social Security Act and Regulations. TR 87-99.
Specifically, the ALJ made the following findings of fact:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2021.
2. The claimant has not engaged in substantial gainful
activity since May 1, 2017, the alleged onset date (20 CFR
404.1571 et seq.).
3. The claimant has the following severe impairments:
cervical and lumbar degenerative disc disease;
hypothyroidism; degenerative joint disease of the left hand;
and posttraumatic stress disorder (PTSD) (20 CFR
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), 404.1425 and 404.1526).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) that is limited to lifting ten pounds,
occasionally up to twenty pounds; sitting for a total of six
hours in an eight-hour workday; standing and/or walking for a
total of six hours in an eight hour workday; frequent use of
his non-dominant left arm and hand for pushing and pulling
and for fine and gross manipulation; understanding,
performing, and maintaining concentration, persistence, and
pace for simple instructions and tasks; occasionally
interacting with coworkers and supervisors but not working
with the general public; working around moderate noise only;
and adapting to infrequent changes in the workplace.
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant was born on August 29, 1977, and was 39 years
old, which is defined as a younger individual age 18-49, on
the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the
determination of disability because using Medical-Vocational
Rules as a framework supports a finding that the claimant is
“not disabled, ” whether or not the claimant has
transferrable 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 and
11. The claimant has not been under a disability, as defined
in the Social Security Act, from May 1, 2017, through the
date of this decision (20 CFR 404.1520 (g)).
15, 2018, Plaintiff timely filed a request for review of the
hearing decision. TR 252. On August 3, 2018, the Appeals
Council issued a letter declining to review the case (TR
1-5), thereby rendering the decision of the ALJ the final
decision of the Commissioner. This civil action was
thereafter timely filed, and the Court has jurisdiction. 42
U.S.C. § 405(g). If the Commissioner's findings are
supported by substantial evidence, based upon the record as a
whole, then these findings are conclusive. Id.
REVIEW OF THE RECORD
parties and the ALJ have summarized and discussed the medical
and testimonial evidence of record. Accordingly, the Court
will discuss those matters only to the extent necessary to
analyze the parties' arguments.
CONCLUSIONS OF LAW
Standard of Review
Court's review of the Commissioner's decision is
limited to the record made in the administrative hearing
process. Jones v. Sec'y of Health & Human
Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). The purpose
of this review is to determine: (1) whether substantial
evidence exists in the record to support the
Commissioner's decision, and (2) whether any legal errors
were committed in the process of reaching that decision.
Landsaw v. Sec'y of Health & Human Servs.,
803 F.2d 211, 213 (6th Cir. 1986).
evidence” means “such relevant evidence as a
reasonable mind might accept as adequate to support the
conclusion.” Her v. Comm'r of Soc. Sec.,
203 F.3d 388, 389 (6th Cir. 1999), citing Richardson v.
Perales, 402 U.S. 389, 401 (1971). “Substantial
evidence” has been further quantified as “more
than a mere scintilla of evidence, but less than a
preponderance.” Bell v. Comm'r of Soc.
Sec., 105 F.3d 244, 245 (6th Cir. 1996), citing
Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229
reviewing court does not substitute its findings of fact for
those of the Commissioner if substantial evidence supports
the Commissioner's findings and inferences. Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). In fact,
even if the evidence could also support a different
conclusion, the decision of the ALJ must stand if substantial
evidence supports the conclusion reached. Her, 203
F.3d at 389, citing Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997). If the Commissioner did not consider the
record as a whole, however, the Commissioner's conclusion
is undermined. Hurst v. Sec'y of Health & Human
Servs., 753 F.2d 517, 519 (6th Cir. 1985), citing
Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).
reviewing the decisions of the Commissioner, courts look to
four types of evidence: (1) objective medical findings
regarding Plaintiff's condition; (2) diagnoses and
opinions of medical experts; (3) subjective evidence of
Plaintiff's condition; and (4) Plaintiff's age,
education, and work experience. Miracle v.
Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).
Proceedings At The Administrative Level
claimant carries the ultimate burden to establish an
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 last for a
continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). “Substantial gainful
activity” not only includes previous work performed by
Plaintiff, but also, considering Plaintiff's age,
education, and work experience, any other relevant work that
exists in the national economy in significant numbers
regardless of whether such work exists in the immediate area
in which Plaintiff lives, or whether a specific job vacancy
exists, or whether Plaintiff would be hired if he or she
applied. 42 U.S.C. § 423(d)(2)(A).
administrative level of review, the claimant's case is
considered under a five-step sequential evaluation process
summarized as follows:
(1) If the claimant is working and the work constitutes
substantial gainful activity, benefits are automatically
(2) If the claimant is not found to have an impairment which
significantly limits his or her ability to work (a
“severe” impairment), then he or she is not
(3) If the claimant is not working and has a severe
impairment, it must be determined whether he or she suffers
from one of the “listed” impairments or its
equivalent. If a listing is met or equaled, benefits
are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level
impairments, it must be determined whether the claimant can
return to the job he or she previously held in light of his
or her residual functional capacity (e.g., what the claimant
can still do despite his or her limitations). By showing a
medical condition that prevents him or her from returning to
such past relevant work, the claimant establishes a prima
facie case of disability.
(5) The burden then shifts to the Commissioner to establish
the claimant's ability to work by proving the existence
of a significant number of jobs in the national economy which
the claimant could perform, given his or her age, experience,
education, and residual functional capacity.
See, e.g. 20 CFR §§ 404.1520, 416.920.
See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th
Commissioner's burden at the fifth step of the evaluation
process can be satisfied by relying on the medical-vocational
guidelines, otherwise known as “the grid, ” but
only if the claimant is not significantly limited by a
nonexertional impairment, and then only when the
claimant's characteristics identically match the
characteristics of the applicable grid rule. Moon,
923 F.2d at 1181; 20 CFR § 404, Subpt. P, App. 2, Rule
200.00(e)(1), (2). See also Damron v. Sec'y of Health
& Human Servs., 778 F.2d 279, 281-82 (6th Cir.
1985). Otherwise, the grid cannot be used to direct a
conclusion, but only as a guide to the disability
determination. Id. In such cases where the grid does
not direct a conclusion as to the claimant's disability,
the Commissioner must rebut the claimant's prima facie
case by coming forward with particularized proof of the
claimant's individual vocational qualifications to
perform specific jobs, which is typically obtained through
vocational expert testimony. See Varley v. Sec'y of
Health & Human Servs., 820 F.2d 777, 779 (6th Cir.
determining residual functional capacity for purposes of the
analysis required at stages four and five above, the
Commissioner is required to consider the combined effect of
all the claimant's impairments: mental and physical,
exertional and nonexertional, severe and nonsevere.
See 42 U.S.C. § 423(d)(2)(B).
Plaintiff's Statement Of Errors
contends that the ALJ: (1) did not properly evaluate the
opinion of Dr. Herr, Plaintiff's treating psychologist;
(2) substituted her own medical opinion for that of Dr. Herr;
and (3) improperly relied on the testimony of the VE when
making her determination at step five of the sequential
evaluation process because the ALJ's hypothetical
questions to the VE did not accurately portray
Plaintiff's mental impairments. Docket No. 13-1.
Accordingly, Plaintiff maintains that, pursuant to 42 U.S.C.
§ 405(g), the Commissioner's decision should be
reversed, or in the alternative, remanded. Id.
four of § 405(g) states as follows:
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
42 U.S.C. §§ 405(g), 1383(c)(3).
cases where there is an adequate record, the Secretary's
decision denying benefits can be reversed and benefits
awarded if the decision is clearly erroneous, proof of
disability is overwhelming, or proof of disability is strong
and evidence to the contrary is lacking.”
Mowery v. Heckler, 771 F.2d 966, 973 (6th
Cir. 1985). Furthermore, a court can reverse the decision and
immediately award benefits if all essential factual issues
have been resolved and the record adequately establishes a
plaintiff's entitlement to benefits. Faucher v.
Sec'y of Health & Human Servs., 17 F.3d
171, 176 (6th Cir. 1994). See also Newkirk v.
Shalala, 25 F.3d 316, 318 (6th Cir. 1994).
Weight Accorded to Opinion of Plaintiff's Treating
maintains that the ALJ improperly disregarded the opinion of
his treating psychologist, Douglas R. Herr, Psy.D. Docket No.
13-1. Specifically, Plaintiff argues that the ALJ should have
given great weight to Dr. Herr's opinion because he is a
specialist, his opinion is consistent with other evidence in
the record, and as Plaintiff's treating psychologist, he
has treated Plaintiff “long enough and frequently
enough” to form a well-considered opinion. Id.
Plaintiff further maintains that the ALJ's rationale for
discounting Dr. Herr's opinion, namely, that it was
“largely based on reports from the claimant and his
wife, and no supporting treatment records were
provided” (TR 90) is erroneous because
“psychological examination and treatment by its very
nature involves the solicitation of and reliance upon the
symptom report of a patient and available witnesses, ”
because Dr. Herr's opinion was based in part on his
observations during sessions, and because “the ALJ made
no attempt to obtain treatment records from Dr. Herr nor even
gave any indication prior to her decision that such records
were needed, and Tennessee law expressly provides that a
treatment provider may give a summary of treatment rather
than the treatment records themselves, see TCA
§63-2-101.” Id. at 15, 17.
additionally argues that Dr. Herr's opinion is consistent
with Plaintiff's earning records and with VA records, and
notes that there are no psychological treatment records to
speak of between when Plaintiff left the military on May 1,
2017 and when he began seeing Dr. Herr, to which Dr.
Herr's opinion could be in conflict. Id. at
15-17. Plaintiff argues that the ALJ's contention that
Dr. Herr's opinion is inconsistent with the VA
psychological treatment records “is inexplicable,
especially given the worsening of [Plaintiff's] PTSD and
the fact that Dr. Herr is the only medical source who even
saw [Plaintiff] ¶ 2018.” Id. at 17.
Plaintiff argues that the “unremarkable cognition
score” referenced by the ALJ is inapposite to a
determination regarding the severity of Plaintiff's PTSD
because it is an 11-question test that screens for gross
cognitive impairment only and Dr. Herr opined that
Plaintiff's “cognition is likely grossly
intact.” Id. at 18. Thus, Plaintiff argues
that his “unremarkable cognition score”
establishes only that he is not suffering from dementia, but
has “little to nothing” to do with the nature and
severity of his PTSD. Id.
responds that the ALJ properly considered the report from Dr.
Herr and found it unpersuasive because it was “not
consistent” with the record, and notes that the ALJ
“cited substantial evidence to support this
finding.” Docket No. 14. Defendant argues that the
cases cited by the Plaintiff are based on application of the
old regulation, CFR § 404.1527 and are
“inapplicable to a case decided under the new
regulations.” Id. Defendant asserts that the
ALJ summarized and considered Dr. Herr's opinion but
found that it was inconsistent with, inter alia,
Plaintiff's earnings and largely unremarkable treatment
record, the fact that Plaintiff had worked for 11 years after
the traumatic events he described and his largely
unremarkable interim records, the fact that Dr. Herr had only
been treating Plaintiff only since the month prior to his
rendered opinion, and there were no supporting treatment
records from Dr. Herr to accompany his opinion. Id.
at 5. Defendant argues therefore that the ALJ fulfilled her
duty under the new regulations applicable to this claim.
Id. at 4-8, referencing 20 CFR §§
additionally responds that the ALJ is specifically permitted
to consider the lack of treatment records or other support in
the record, and that, with regard to the VA disability
findings themselves, under the new regulations, the SSA will
not analyze another agency's decision as that agency
reaches its decision using its own rules, but the SSA will
consider the decision's supporting evidence. Id.
at 9, referencing 82 Fed. Reg. 5844, 5848-49, 20 CFR
§§ 404.1504, 416.904, 404.1520c, 416.920c.
Defendant argues that the ALJ properly considered the lack of
treatment records and support in the record, and ...