United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
Judge Holmes has entered a Report and Recommendation
(“R&R”) (Doc. No. 29) in which she recommends
affirmance of the final decision of the Social Security
Commissioner denying Calvin Eugene Boles' claim for
Disability Insurance Benefits and Supplemental Security
Income. Boles has filed an Objection (Doc. No. 30), arguing
that the Administrative Law Judge (1) did not properly
evaluate his assertions of disabling pain as required by the
Sixth Circuit in Duncan v. Sec'y of Health and Human
Servs., 801 F.2s 847 (6th Cir. 1986), and (2) improperly
characterized the results of an April 21, 2015 MRI of the
cervical spine as being “mild.” (Doc. No. 30 at
Duncan, the Sixth Circuit developed a two prong test
to evaluate a social security claimant's assertion of
First, we examine whether there is objective medical evidence
of an underlying medical condition. If there is, we then
examine: (1) whether objective medical evidence confirms the
severity of the alleged pain arising from the condition; or
(2) whether the objectively established medical condition is
of such a severity that it can reasonably be expected to
produce the alleged disabling pain.
801 F.3d at 853. In the quarter of a century since that case
was decided, however, the Sixth Circuit has repeatedly held
that “an ALJ who follows the requirements of 20 C.F.R.
§ 404.1529 does not commit error by failing to
explicitly follow Duncan.” Pasco v.
Comm'r of Soc. Sec., 137 Fed.Appx. 828, 835 (6th
Cir. 2005) (citing Baranich v. Barnhart, 128
Fed.Appx. 481, 483 (6th Cir. 2005); McCoy v. Chater,
81 F.3d F.3d 44, 47 (6th Cir. 1995)). That is what the ALJ
did in this case - she did not cite Duncan, but
followed the requirements of § 404.1529.
to Boles' assertion that the “ALJ summarily
dismissed [his] pain and its limitation on his ability to
function by the short statement, ‘[t]he level of
severity of pain and functional limitations alleged are not
consistent with the objective data and are therefore deemed
to be only partially credible, ” (Doc. No. 30 at 1-2),
the ALJ was much more thorough than that. She wrote:
After careful consideration of the evidence, the undersigned
finds that the claimant's medically determinable
impairments could reasonably be expected to cause the alleged
symptoms; however, the claimants statements concerning the
intensity, persistence, and limiting effects of these
symptoms are not credible to the extent they are inconsistent
with the above residual functional capacity assessment. The
treatment notes, examination findings and objective
diagnostic testing results simply do not support the degree
of limitations that the claimant alleges. In addition, there
are a number of inconsistencies which detract from the
(Doc. No. 21-1 at 16). This statement was preceded by several
pages detailing Boles' complaints and why the ALJ found
those complaints to be overstated. It was also followed by
several paragraphs setting forth more of Boles'
complaints, along with reasons as why the ALJ chose not to
ALJ's findings based on the credibility of the applicant
are to be accorded great weight and deference, particularly
since an ALJ is charged with the duty of observing a
witness's demeanor and credibility.” Walters v.
Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
1997) (citing Villarreal v. Sec'y of Health and Human
Servs., 818 F.2d 461, 463 (6th Cir. 1987)). As a
consequence, and further “[g]iven the deferential
substantial-evidence standard, ‘[c]laimants challenging
the ALJ's credibility findings face an uphill
battle.'” Nettleman v. Comm'r of Soc.
Sec., 725 Fed.Appx. 358, 360 (6th Cir. 2018)(quoting
Daniels v. Comm'r of Soc. Sec., 152 Fed.Appx.
485, 488 (6th Cir. 2005)).
in this case did not simply rely upon boilerplate or
hackneyed language to make her credibility determination.
Instead, she compared Boles' alleged pain and its
limitations to the record as a whole and found the subjective
complaints to be inconsistent with the objective evidence.
“Such inconsistency is an appropriate basis for an
adverse credibility finding.” Morr v. Comm'r of
Soc. Sec., 616 Fed.Appx. 210, 212 (6th Cir. 2015).
reliance on the April 21, 2015 MRI does not alter this
conclusion. He notes that the MRI showed “stenosis of
the medial aspect of the neural foramina, ”
“there was a posterior central right disc protrusion
that resulted in stenosis in the medial aspect of the right
neural foramina” at C5-6, and there was a
“posterior right lateral disc herniation” at
C6-7. (Doc. No. 30 at 2-3). While this certainly does not
sound good, Boles has not shown himself to be qualified to
render the opinion that these constitute “very
significant findings, ” (id. at 3), let alone
that such “findings” are supportive of the pain
that he claims. Regardless, the ALJ specifically listed
degenerative disc disorder as a “severe impairment,
” and, as a result, found Boles could only perform
light work. (Doc. No. 21-1 at 8, 11). Boles points to nothing
in the MRI records that establishes his inability to perform
such work, beyond the supposition that the report could
perhaps indicate greater limitations. See Mokbel-Aljahmi
v. Comm'r of Soc. Sec., 732 Fed.Appx. 395, 399-400
(6th Cir. 2018) (noting that “the substantial-evidence
standard . . . presupposes that there is a zone of choice
within which the decisionmakers can go either way, ”
and, therefore, the fact that some evidence supports a
claimant's position is not dispositive).
and having conducted the de novo review required by
Rule 72 of the Federal Rules of Civil Procedure, the Court
rules as follows:
R&R (Doc. No. 29) is APPROVED ...