United States District Court, M.D. Tennessee, Nashville Division
WILLIAM J. TURNER, JR., Plaintiff,
ANDREW M. SAUL, COMMISSIONER OF SOCIAL Security Administration, Defendant.
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. 17.
Plaintiff has filed an accompanying Memorandum of Law. Docket
No. 17-1. Defendant has filed a Response, arguing that the
decision of the Commissioner was supported by substantial
evidence and should be affirmed. Docket No. 18.
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 July 9, 2014, alleging that he had been
disabled since February 12, 2012, due to “Double Lung
Transplant, ” “Multiple Level Back Injury,
” “Osteoporosis, ” “Chronic Digestive
Disorder, ” “Adult Attention Deficit Disorder,
” “Depression, ” “Post Traumatic
Stress Disorder, ” “Chronic Kidney Stones,
” and “High Blood Pressure.” See,
e.g., Docket No. 15, Attachment (“TR”), pp.
242-243, 414. Plaintiff's application was denied both
initially (TR 115) and upon reconsideration (TR 139).
Plaintiff subsequently requested (TR 151-52) and received (TR
66-96) a hearing. Plaintiff's initial hearing was
conducted on January 13, 2017, by Administrative Law Judge
(“ALJ”) Shannon H. Heath. TR 66-96. At the
request of Plaintiff (TR 20), a supplemental hearing was
conducted on August 15, 2017. TR 50-65. Plaintiff and
vocational expert (“VE”), Charles Wheeler,
appeared and testified at both hearings. Id. at 50;
February 6, 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 17-35.
Specifically, the ALJ made the following findings of fact:
1. The claimant last met the insured status requirements of
the Social Security Act on December 31, 2017.
2. The claimant did not engage in substantial gainful
activity during the period from his alleged onset date of
February 12, 2013 through his date last insured of December
31, 2017 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the
following severe impairments: degenerative disc disease of
the lumbar spine; history of lung transplant; depressive
disorder; attention deficit hyperactivity disorder and
post-traumatic stress disorder (20 CFR 404.1520)(c)).
4. Through the date last insured, the claimant did not have
an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant retains the capacity to lift up to ten pounds
occasionally and five pounds frequently. He is able to stand
and walk up to two hours total in an eight-hour workday. He
can sit up to six hours total in an eight-hour workday. He
must never climb ladders, ropes or scaffolds. He can
frequently balance but occasionally climb ramps, stairs,
stoop, kneel[, ] crouch and crawl. He must avoid concentrated
exposure to pulmonary irritants. He can understand, remember
and carry out simple and low-level detailed tasks. He can
maintain concentration, persistence and pace with normal
breaks spread throughout the workday. He is able to interact
appropriately with supervisors and coworkers. He can interact
with the public occasionally. He is able to adapt to
occasional changes in the workplace.
6. Through the date last insured, the claimant was unable to
perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on December 15, 1968 and was 49
years old, which is defined as a younger individual age
18-44, on the date last insured (20 CFR 404.1563).
8. The claimant has a two-year college 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 the
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. Through the date last insured, considering the
claimant's age, education, work experience, and residual
functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant
could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in
the Social Security Act, at any time from February 12, 2013,
the alleged onset date, through December 31, 2017, the date
last insured (20 CFR 404.1520(g)).
April 2, 2018, Plaintiff timely filed a request for review of
the hearing decision. TR 241. On July 18, 2018, the Appeals
Council issued a letter declining to review the case (TR
1-3), 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 erred by: (1) improperly weighing the
medical and opinion evidence; (2) improperly determining the
severity of Plaintiff's conditions; (3) failing to
consider “the synergistic impact of all these disorders
working in concert against [Plaintiff] to prevent him from
sustaining employment”; (4) finding “that
[Plaintiff] had no severe impairments that had lasted for
more than twelve months nor any that were expected to last
longer than twelve months”; and (5) concluding that
Plaintiff did not meet listing 12.04. Docket No. 17-1, pp.
4-16. 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 the Medical and Opinion Evidence
Regarding Plaintiff's Physical
and Mental Limitations and the ALJ's Resultant Physical
and Mental RFC Determination
first argues that the ALJ “erred by not giving
sufficient weight to some medical evidence while over
emphasizing the importance of other evidence, ” and,
“by failing to adequately explain why some evidence was
considered probative of the issues while other evidence was
discounted.” Docket No. 17-1, p. 7. Plaintiff further
asserts as error the ALJ's assigning of “greater
weight to state agency consultative exams than of
[Plaintiff's] own treating physicians.”
Id. As support for his claim that the ALJ erred in
weighing the medical evidence, Plaintiff cites: “MARKED
restrictions . . . due to attention deficit disorder”
(Id. at 7-8, citing TR 1779);
Plaintiff's unemployment (Id. at 8); a suicide
attempt and psychiatric unit visits (Id.,
citing TR 900); GAF scores (Id., citing TR
108); “hypersensitive[ity] to germs and his paranoia
about getting sick (Id., citing TR 903); and Dr.
Ward's treatment notes (Id. at 10,
citing TR 1451-1461). In relation to the assignment
of error claiming the ALJ's failure in according more
weight to State agency consultants than to Plaintiff's
treating physician, Plaintiff cites as support that:
“Dr. Langworthy's answers are based on the medical
opinions [Plaintiff] has and continues to treat”
(Id. at 9); “[b]oth [Drs. Gilmore and
Thomason] are State agency consultants and saw [Plaintiff]
one time” (Id.); “Ms. Starr treated
[Plaintiff] for a period of ten years” with facts
supporting her medical opinion (Id. at 11,
citing TR 890-911; 900); and “[t]he ALJ's
rejection of Dr. Germek's report.” (Id. at
12, citing TR 1124).
responds that the ALJ “properly reviewed the record as
a whole to find that Plaintiff could perform a restricted
range of low-detailed, sedentary work in significant numbers
in the national economy and was not disabled.” Docket
No. 18, p. 6. Additionally, Defendant contends that the ALJ
properly considered the medical opinions of record
(Id. at 8, citing TR 22-24) and properly
resolved the conflicts among the opinions (Id. at 9,
citing TR 27-29). As support, Defendant recounts the
ALJ's findings that: Dr. Workman was a one-time
consultative examiner whose opinion was entitled to little
weight because it was inconsistent with the record.
Id., citing TR 28); Drs. Gilman's and
Thomason's opinions were due greater weight because they
were consistent with the record (Id. at 9-10); Dr.
Langworthy's opinion was inconsistent with the record
(Id. at 10); and Dr. Germek's opinion was based
on a one-time consultative evaluation, was inconsistent with
the record, and was not expressed in functional terms
(Id. at 11, citing TR 31). Defendant
further argues that the ALJ accorded proper weight to Dr.
Kupstas' opinion and Dr. Elliot's evaluation
(Id. at 12); “properly considered Ms.
Starr's August 2014 letter stating that Plaintiff had
difficulty focusing to run his business” (Id.
at 13, citing TR 906); properly determined that Ms.
Starr was not an acceptable medical source (Id.,
citing TR 29-30); and appropriately noted that Ms. Starr
did not provide a specific opinion on Plaintiff's
functional limitations (Id. at 14).
regard to the evaluation of medical evidence, the Code of
Federal Regulations states:
Regardless of its source, we will evaluate every medical
opinion we receive. Unless we give a treating source's
opinion controlling weight under paragraph (c)(2) of this
section, we consider all of the following factors in deciding
the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to
the opinion of a source who has examined you than to the
opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to
opinions from your treating sources, since these sources are
likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s)
and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations. If we
find that a treating source's opinion on the issue(s) of
the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in your case record,
we will give it controlling weight. When we do not give the
treating source's opinion controlling weight, we apply
the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of
this section, as well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining the weight to
give the opinion. . . .
(3) Supportability. The more a medical source presents
relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give
that opinion. The better an explanation a source provides for
an opinion, the more weight we will give that opinion . . . .
(4) Consistency. Generally, the more consistent an opinion is
with the record as a whole, the more weight we will give to
(5) Specialization. We generally give more weight to the
opinion of a specialist about medical issues related to his
or her area of specialty than to the opinion of a source who
is not a specialist.
. . .
20 CFR § 416.927(c) (emphasis added). See also
20 CFR § 404.1527(c).
must articulate the reasons underlying her decision to give a
medical opinion a specific amount of weight. See,
e.g., 20 CFR § 404.1527(d); Allen v. Comm'r
of Soc. Sec., 561 F.3d 646 (6th Cir. 2009); Wilson
v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004). The reasons must be supported by the evidence and must
be sufficiently specific so as to make clear to any
subsequent reviewers the weight the ALJ gave to the treating
source medical opinion and the reasons for that weight. SSR
Sixth Circuit has held that, “[p]rovided that they are
based on sufficient medical data, the medical opinions and
diagnoses of treating physicians are generally accorded
substantial deference, and if the opinions are
uncontradicted, complete deference.” Howard v.
Comm'r of Soc. Sec., 276 F.3d 235, 240 (6th
Cir. 2002), quoting Harris v. Heckler, 756 F.2d 431,
435 (6th Cir. 1985). If the ALJ rejects the opinion of a
treating source, however, she is required to articulate some
basis for rejecting the opinion. Shelman v. Heckler,
821 F.2d 316, 321 (6th Cir. 1987). The Code of Federal
Regulations defines a “treating source” as:
[Y]our own physician, psychologist, or other acceptable
medical source who provides you or has provided you, with
medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with you.
20 CFR § 404.1502.
initial matter, with regard to the evidence before the ALJ
upon which she based her decision, the ALJ noted:
Attorney Forest Jackson appeared at the January 13, 2017
disability hearing for Attorney John Heard, the
claimant's primary representative of record. Mr. Jackson
did not have all the necessary records at the time of the
hearing. The claimant's attorneys were given several
extensions of time to properly develop the file as the record
remained in POST hearing status until April 24, 2017. See