Browning v. Social Security Administration, Commissioner of

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

KEVIN L. BROWNING, )

)

Plaintiff, )

)

v. ) No. 2:20-CV-012-HBG

)

ANDREW M. SAUL, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal

Rules of Civil Procedure, and the consent of the parties [Doc. 12].

Now before the Court is Plaintiff’s Motion for Judgment on the Pleadings and

Memorandum in Support [Docs. 13 & 14] and Defendant’s Motion for Summary Judgment and

Memorandum in Support [Docs. 17 & 18]. Kevin L. Browning (“Plaintiff”) seeks judicial review

of the decision of the Administrative Law Judge (“the ALJ”), the final decision of Defendant

Andrew M. Saul (“the Commissioner”). For the reasons that follow, the Court will DENY

Plaintiff’s motion and GRANT the Commissioner’s motion.

I. PROCEDURAL HISTORY

Plaintiff previously filed an application for disability insurance benefits pursuant to Title

II of the Social Security Act, 42 U.S.C. §§ 401 et seq., on June 17, 2014. [Tr. 136–37]. Plaintiff’s

alleged onset date was March 7, 2014. [Id.]. After his claims were denied initially and upon

reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 104–05]. A hearing was held

on January 12, 2017 before ALJ Keith Pilkey. [Tr. 29–46]. ALJ Pilkey denied Plaintiff’s claim

on April 10, 2017 [Tr. 15–23], and the Appeals Council denied Plaintiff’s request for review on

October 5, 2016 [Tr. 1–6]. After Plaintiff commenced a civil action in this Court, Judge Clifton

Corker issued an order remanding Plaintiff’s claim to the Commissioner for further consideration

on January 3, 2019. See Browning v. Comm’r of Soc. Sec. Admin., No. 2:17-cv-195-MCLC (E.D.

Tenn. Sept. 22, 2017) [Docs. 19–20]. Judge Corker remanded the case to determine the correct

date on which Plaintiff was last insured, as well as for the ALJ to properly analyze the U.S.

Department of Veterans Affairs (“VA”) disability rating as required by SSR 06-03p. [Id.]. The

Appeals Council remanded the case to the ALJ on March 25, 2019 for further proceedings

consistent with the Court’s order. [Tr. 1499].

Plaintiff submitted additional medical records, and a supplemental hearing was held on

October 24, 2019. [Tr. 1430–51]. On November 13, 2019, ALJ Pilkey found that Plaintiff was

not under a disability and was not entitled to disability insurance benefits. [Tr. 1409–29]. The

Appeals Council did not assume jurisdiction and Plaintiff did not file exceptions to the decision

with the Appeals Council. See 20 CFR §§ 404.983; 404.984. Having exhausted his administrative

remedies, Plaintiff filed a Complaint with this Court on January 22, 2020, seeking judicial review

of the Commissioner’s final decision under Section 405(g) of the Social Security Act. [Doc. 1].

The parties have filed competing dispositive motions, and this matter is now ripe for adjudication.

II. ALJ FINDINGS

The ALJ made the following findings:

1. The claimant last met the insured status requirements of the

Social Security Act on June 30, 2016.

2. The claimant did not engage in substantial gainful activity during

the period from his alleged onset date of March 7, 2014 through his

date last insured of June 30, 2016 (20 CFR 404.1571 et seq.).

3. Through the date last insured, the claimant had the following

severe impairments: degenerative disc disease of the cervical and

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lumbar spine, osteoarthritis, degenerative joint disease, right

epicondylitis, and residuals of ganglion cyst removal left hand (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,

404.1526).

5. After careful consideration of the entire record, the undersigned

finds that, through the date last insured, the claimant had the residual

functional capacity to perform light work as defined in 20 CFR

404.1567(b) except no climbing ladders, ropes, or scaffolds;

occasional climbing ramps and stairs, balancing, stooping, kneeling,

crouching and crawling; frequent fingering; and occasional

exposure to vibration and to hazards.

6. Through the date last insured, the claimant was capable of

performing past relevant work as a sales agent. This work did not

require the performance of work-related activities precluded by the

claimant’s residual functional capacity (20 CFR 404.1565).

7. The claimant was not under a disability, as defined in the Social

Security Act, at any time from March 7, 2014, the alleged onset date,

through June 30, 2016, the date last insured (20 CFR 404.1520(f)).

[Tr. 1414–23].

III. STANDARD OF REVIEW

When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision

was reached through application of the correct legal standards and in accordance with the

procedure mandated by the regulations and rulings promulgated by the Commissioner, and

whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,

581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,

544 (6th Cir. 2004).

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Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it

is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It

is immaterial whether the record may also possess substantial evidence to support a different

conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the

case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).

The substantial evidence standard is intended to create a “‘zone of choice’ within which the

Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,

773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Additionally,

the Supreme Court recently explained that “‘substantial evidence’ is a ‘term of art,’” and “whatever

the meaning of ‘substantial’ in other settings, the threshold for such evidentiary sufficiency is not

high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted). Rather, substantial

evidence “means—and means only—‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)).

On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.

Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted). Furthermore,

the Court is not under any obligation to scour the record for errors not identified by the claimant

and arguments not raised and supported in more than a perfunctory manner may be deemed

waived. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (noting that conclusory

claims of error without further argument or authority may be considered waived).

IV. DISABILITY ELIGIBILITY

“Disability” means an individual cannot “engage in any substantial gainful activity by

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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)(A) and 1382c(a)(3)(A). An individual will only be

considered disabled:

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.

§§ 423(d)(2)(A) and 1382c(a)(3)(B).

Disability is evaluated pursuant to a five-step analysis summarized as follows:

1. If claimant is doing substantial gainful activity, he is not disabled.

2. If claimant is not doing substantial gainful activity, his

impairment must be severe before he can be found to be disabled.

3. If claimant is not doing substantial gainful activity and is

suffering from a severe impairment that has lasted or is expected to

last for a continuous period of at least twelve months, and his

impairment meets or equals a listed impairment, claimant is

presumed disabled without further inquiry.

4. If claimant’s impairment does not prevent him from doing his

past relevant work, he is not disabled.

5. Even if claimant’s impairment does prevent him from doing his

past relevant work, if other work exists in the national economy that

accommodates his residual functional capacity (“RFC”) and

vocational factors (age, education, skills, etc.), he is not disabled.

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).

A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is

“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§

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404.1520(a)(4) and -(e), 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his

limitations. §§ 404.1545(a)(1) and 416.945(a)(1).

The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.

The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must

prove that there is work available in the national economy that the claimant could perform. Her

v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,

146 (1987)).

V. ANALYSIS

Plaintiff first claims that the ALJ erred by finding that his depression was not a severe

impairment. [Doc. 14 at 13]. Additionally, Plaintiff asserts that the ALJ failed to properly weigh

the opinion evidence from the VA regarding his physical and mental limitations. [Id. at 11].

Plaintiff challenges the ALJ’s assignment of some weight to the opinions of the nonexamining

state agency physicians “when those opinions only considered [his] condition through an

erroneous date last insured of June 30, 2014.” [Id. at 12]. Plaintiff claims that the ALJ failed to

properly weigh his subjective allegations or properly analyze that his previous job at the VA was

for a disabled veteran. [Id. at 14]. Lastly, Plaintiff claims that the ALJ’s finding that he could

return to his past relevant work as a sales agent and insurance clerk is “not supported by substantial

evidence as it does not include all of the uncontradicted impairments of the Plaintiff, particularly

his difficulty in using his hands and emotional impairments.” [Id. at 13].

A. Plaintiff’s Depression

Plaintiff contends that he was treated by the VA for depression for several years, and thus

the ALJ’s finding that his depression was a nonsevere impairment is not supported by substantial

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evidence. Plaintiff notes that he was diagnosed as suffering from depression from the VA,1 as

well as that it was noted that “he had a long history of depression since his injury” while serving

in the Army and that “being limited a[t] home increases depression.” [Id. at 13]; see [Tr. 678].

Plaintiff correctly states that treatment records detail major depressive disorder, recurrent,

moderate as an active problem on October 28, 2014. [Tr. 62]. Moreover, Plaintiff points to a

February 9, 2016 treatment note indicating depression and that he was prescribed Venlafaxine.

[Tr. 1866–67]. An April 15, 2016 treatment note states that a PHQ-2 screen was performed, which

resulted in a score of three (a positive screen for depression). [Tr. 1855].

The Commissioner responds that “the fact that Plaintiff was diagnosed with and treated for

depression does not automatically equate to limitations on his basic work activities.” [Doc. 18 at

13]. The Commissioner maintains that substantial evidence supports the ALJ’s finding that

Plaintiff’s medically determinable, but nonsevere, impairment of depression caused no more than

mild limitations the four broad areas of mental functioning.

In the disability decision, the ALJ acknowledged that Plaintiff’s medically determinable

mental impairment of depression “did not cause more than minimal limitation in the claimant’s

ability to perform basis mental work activities and was therefore nonsevere,” due to the fact that

it caused no more than mild limitations in the four broad functional areas of mental functioning.

[Tr. 1415]. The ALJ found that Plaintiff had mild limitations in understanding, remembering, or

applying information; interacting with others; concentrating, persisting, or maintaining pace; and

adapting or managing oneself. [Tr. 1415–16].

1 Although Plaintiff claims that he was diagnosed at the VA as suffering from depression

as early as September 2014, Plaintiff’s citation to the record (Tr. 579) refers to his consultation

with a dietician on October 4, 2013.

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In support, the ALJ found that Plaintiff “made numerous reports inconsistent with a finding

of more than mild limitations in the four broad areas of psychological functioning.” [Tr. 1416].

The ALJ noted that Plaintiff reported on February 12, 2014 that he was able to provide daily care

for an autistic, nonverbal twenty-one-year old and a fourteen-year old who were not able to

perform activities of daily living. [Id.]; see [Tr. 532]. Moreover, the ALJ found that in June 2013

and June 2014, Plaintiff reported drinking five-to-six alcoholic beverages more than three days per

week, and raising six minor children—including fostering “mentally challenged” children—while

his wife ran their taxi business. [Tr. 1416]; see [Tr. 511, 515, 591]. The ALJ also noted that

Plaintiff reported going on vacation. [Tr. 511, 591].

Next, the ALJ reviewed that Plaintiff reported on June 26, 2013, that he “unilaterally

stopped taking his mental health medications in 2012 and went an entire year without any

psychotropic medication.” [Id.]; see [Tr. 588]. The ALJ noted that Plaintiff reported a score of

“1” on his PHQ-9 questionnaire assessment, which is interpreted as a negative screen for

depression on July 26, 2013 [Tr. 595], as well as that PTSD screening was also negative in 2013

and 2014 [Tr. 595, 1389]. [Tr. 1416]. Moreover, the ALJ noted that Plaintiff “contemporaneously

declined a referral for mental health services” on July 26, 2013 [Tr. 592], as well as that “[s]ince

February 2014, the claimant has been conservatively managed with venlafaxine for depression,

and he continued to decline therapy services and mental health consults between 2014 and 2016.”

[Tr. 1416]; see [Tr. 535, 1263, 1305, 1319, 1389]. The ALJ provided that “mental status

examinations routinely revealed appropriate grooming, a polite/cooperative attitude, attentive

concentration, normal memory, normal affect, stable mood, normal speech, logical thought

processes, no perceptual disturbances, and a normal psychomotor activity. [Tr. 1416]; see [Tr.

535, 958, 1261, 1274, 1329]. Lastly, the ALJ detailed that Plaintiff continued to deny suicidal

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ideas and reported a stable mood on December 29, 2016. [Tr. 1416]; see [Tr. 1814].

At step two, the ALJ is required to consider whether Plaintiff’s alleged impairments

constitute “medically determinable” impairments. See 20 C.F.R. §§ 404.1508; 416.920(a)(4)(ii);

404.1520(a)(4)(ii). A medically determinable impairment “must result from anatomical,

physiological, or psychological abnormalities which can be shown by medically acceptable

clinical and laboratory diagnostic techniques,” and “must be established by medical evidence

consisting of signs, symptoms, and laboratory findings, not only by [the claimant’s] statement of

symptoms.” 20 C.F.R. §§ 404.1508; 416.908. Additionally, an impairment must meet the

durational requirement, meaning, “it must have lasted or must be expected to last for a continuous

period of at least 12 months.” 20 C.F.R. § 404.1509.

To be found disabled, “the ALJ must find that the claimant has a severe impairment or

impairments” at step two. Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88 (6th Cir.

1985). An impairment, or combination of impairments, will be found severe if the impairment(s)

“significantly limit[ ] [a claimant’s] physical or mental ability to do basic work activities.” 20

C.F.R. § 416.920(c). The step two determination is “a de minimis hurdle” in that “an impairment

will be considered not severe only if it is a slight abnormality that minimally affects work ability

regardless of age, education, and experience.” Higgs v. Brown, 880 F.2d 860, 862 (6th Cir. 1988)

(citing Farris, 773 F.2d at 90).

However, the Court finds that substantial evidence supports the ALJ’s finding that

Plaintiff’s depression was a nonsevere impairment. The ALJ acknowledged Plaintiff’s diagnosis

for depression, but found that it had been conservatively managed, as well as that Plaintiff declined

therapy services and mental health services. Additionally, the ALJ found that more than mild

limitations were inconsistent with Plaintiff’s reported daily activities, such as his ability to raise

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several minor children, including two who are mentally challenged. See, e.g., Church v. Saul, No.

2:18-CV-36-HBG, 2019 WL 3070313, at *9 (E.D. Tenn. July 12, 2019) (finding substantial

evidence supported the ALJ’s finding that Plaintiff’s depression was a nonsevere impairment

where the ALJ noted that Plaintiff’s treatment records demonstrated a history of depression

aggravated by alcohol abuse, that Plaintiff’s depressive symptoms were conservatively treated and

well-managed with medication, and that Plaintiff’s depression did not cause more than minimal

limitations in the ability to perform basic mental work related activities); Knox v. Colvin, No.

2:16CV155-TFM, 2016 WL 6897791, at *4 (M.D. Ala. Nov. 22, 2016) (finding substantial

evidence supported the Commissioner’s finding that the claimant’s anxiety and depression did not

constitute severe mental impairments where the conditions were treated conservatively and the

ALJ found that the claimant had only mild limitations in the paragraph B criteria). The

Commissioner correctly states that “disability is determined by the functional limitations imposed

by a condition, not the mere diagnosis of it.” Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 551

(6th Cir. 2014) (citing Higgs, 880 F.2d at 863).

Further, it is well settled that the ALJ’s failure to identify some impairments as “severe” is

harmless where the ALJ continues the disability determination and considers both severe and

nonsevere impairments at subsequent steps of the sequential evaluation as required by the

regulations. See Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007) (“And when an ALJ

considers all of a claimant’s impairments in the remaining steps of the disability determination, an

ALJ’s failure to find additional severe impairments at step two ‘[does] not constitute reversible

error.’”) (quoting Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987));

Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801, 803 (6th Cir. 2003) (“Because the ALJ found

that Pompa had a severe impairment at step two of the analysis, the question of whether the ALJ

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characterized any other alleged impairment as severe or not severe is of little consequence.”).

In the RFC determination, the ALJ noted that he had considered the opinions of the state

agency psychological consultants, including their opinion that Plaintiff had no more than mild

psychological limitations in the paragraph B criteria, and afforded their opinions some weight.

[Tr. 1420]. Therefore, the Court finds that any error in the ALJ’s step two determination that

Plaintiff’s depression was nonsevere was harmless, as the ALJ properly considered Plaintiff’s

depression in the RFC determination. See, e.g., McGowan v. Astrue, No. 1:12-CV-75, 2013 WL

693234, at *12 (E.D. Tenn. Feb. 8, 2013) (“As the ALJ found Plaintiff had at least one severe

impairment and then considered his severe and nonsevere impairments in the subsequent steps, it

became ‘legally irrelevant’ that his depression was determined to be nonsevere.”), report and

recommendation adopted sub nom., McGowan v. Comm’r of Soc. Sec., 2013 WL 696087 (E.D.

Tenn. Feb. 26, 2013).

B. ALJ’s Treatment of Medical Opinions

Plaintiff asserts that the ALJ improperly weighed the opinions from the VA providers and

the nonexamining state agency physicians. In the disability decision, the ALJ first reviewed the

February 4, 2014 opinion of Mark Clark, PA-C, who performed an in-person examination and

completed a disability benefits questionnaire. [Tr. 1420]; see [Tr. 60–19, 919–45]. The ALJ noted

that Mr. Clark found Plaintiff’s ability to work “was not functionally impacted due to [his]

cervical/lumbar degenerative nor his allegations of neuropathy.” [Tr. 1420]. Specifically, the ALJ

detailed that during the evaluation, Mr. Clark observed that Plaintiff had limited motion, reduced

(4/5) strength in the upper and lower extremities, and reduced grip strength, “which is somewhat

inconsistent with no limitations.” [Id.]. Additionally, the ALJ noted that imaging studies

confirmed some mild orthopedic findings and treatment with hydrocodone. [Id.]. However, the

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ALJ then noted that Mr. Clark is not an acceptable medical source, “and his opinion addresses the

claimant’s functioning prior to the alleged onset date,” therefore the opinion was accorded little

weight. [Id.].2

Next, the ALJ reviewed the November 19, 2014 Compensation and Pension examination

performed by Thomas Frantzen, PA-C. [Id.]; see [Tr. 627–56]. The ALJ detailed that Mr. Frantzen

found that Plaintiff was limited to a reduced range of sedentary exertion or

“administrative/clerical” work with postural restrictions, limited lifting/persistent pushing with the

right arm or routinely torqueing the right elbow, that he could only work two hours per day with

breaks every thirty minutes to stretch his back. [Tr. 1421]; see [Tr. 628, 639, 647]. Mr. Frantzen

also opined that Plaintiff was “partially qualified for simple clerical work for two hours per day.”

[Tr. 1421]; see [Tr. 635].

The ALJ, however, afforded Mr. Frantzen’s opinion little weight. [Tr. 1421]. First, the

ALJ noted that Mr. Frantzen “observed the claimant with largely the same mild findings as Mr.

Clark.” [Id.]. Additionally, the ALJ found that Mr. Frantzen’s opinion was “inconsistent with the

numerous imaging studies reflecting no significant neural compromise and mild orthopedic

findings and conservative treatment, including [Plaintiff’s] declining spiral injections.” [Id.].

Further, the ALJ noted that Mr. Frantzen found respiratory limitations “despite a PFT study

confirming normal results.” [Id.]; see [Tr. 655]. The ALJ also found that Mr. Frantzen’s opinion

was inconsistent with Plaintiff’s report of performing yardwork in November 2014, as well as the

“assessment of Arthur Belanger, M.D., a VA physician who evaluated the claimant’s epicondylitis

2 The ALJ further detailed that Mr. Clark evaluated Plaintiff in 2009, but this opinion was

accorded no weight because it assessed Plaintiff’s functioning outside of the scope of the relevant

period. [Tr. 1421].

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in 2019” and found that “it was ‘extremely unlikely’ that the claimant’s right epicondylitis was

caused by overuse . . . in overcompensating for the claimant’s alleged difficulties with the left

thumb.” [Tr. 1421]; see [Tr. 1147]. Lastly, the ALJ noted that Mr. Frantzen was not an acceptable

medical source. [Tr. 1421].

Third, the ALJ found that “[t]he opinion of the VA audiologist, Graham Wilde, Ph.D., is

accorded little weight.” [Id.]. The ALJ reviewed that Dr. Wilde found that Plaintiff had hearing

loss that would affect his work, that Plaintiff had difficulty hearing speech in the presence of

background noise, but that Plaintiff’s tinnitus would not impact his work ability. [Id.]; see [Tr.

660, 1489]. However, the ALJ found that “this was based solely upon the claimant’s subjective

reports of [the] same, as a contemporaneous audiogram conducted by Dr. Wilde confirmed

‘normal’ hearing.” [Tr. 1421]; see [Tr. 659–60]. Additionally, the ALJ stated that testing revealed

96% speech discrimination, bilaterally. [Tr. 1421]; see [Tr. 657].3

Lastly, the ALJ reviewed the opinions of the nonexamining state agency medical and

psychological consultants and afforded them some weight. [Tr. 1420]. On October 3, 2014, at the

initial stage of the agency’s review, Joseph Curtsinger, M.D., reviewed the evidence of record and

opined that Plaintiff’s impairments were nonsevere. [Tr. 71]. Additionally, state agency reviewing

psychologist, C. Warrant Thompson, Ph.D. found that Plaintiff’s mental impairments were not

severe. [Tr. 72].

At the reconsideration level of the agency’s review, on March 27, 2015, state agency

psychological consultant Jenaan Khaleeli, Psy.D., evaluated Plaintiff’s mental impairments and

found that they were not severe and noted that Plaintiff had not alleged any worsening of his

3 Plaintiff does not challenge the ALJ’s assignment of little weight to the disability rating

issued by the VA, which was a basis of the Court’s prior remand order.

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depression on reconsideration, provided any updated mental health treatment, or provided any

updated information about his activities of daily living. [Tr. 91]. Additionally, Larry McNeil,

M.D., examined the evidence of record and noted that x-ray evidence revealed minimal evidence

of osteoarthritic changes in Plaintiff’s hands and right shoulder and no evidence of disc disease in

Plaintiff’s back. [Tr. 89].

In the disability decision, the ALJ noted that the state agency medical and psychological

consultants opined that Plaintiff had no more than mild psychological limitations in the paragraph

B criteria and no severe physical impairments. [Tr. 1420]. In addition, the ALJ found that they

were acceptable medical sources and familiar with the disability evaluation process and its

requirements, as well as that their opinions were generally consistent with evidence prior to 2014.

[Id.]. However, the ALJ detailed that these physicians were not examining sources and “lacked

the opportunity to review additional evidence submitted at the hearing level, which warrants

physical restrictions,” as well as “[m]ost notably,” they “applied the incorrect date last insured” of

June 30, 2014, “which precluded them from considering evidence after 2014.” [Id.]. Therefore,

the ALJ afforded only some weight to the opinions of the nonexamining state agency physicians.

Here, Plaintiff asserts that the opinions of Mr. Clark, Mr. Frantzen, and Dr. Wilde—

opinions from VA medical providers—are “the only evidence in the record” regarding his

limitations during the relevant period from the alleged onset date through the date last insured.

[Doc. 14 at 11]. Plaintiff claims that the ALJ’s analysis of the opinions of the VA medical officials

did not comply with the requirements of Social Security Ruling 06-3p, as well as that “[t]here is

simply no contradictory evidence from any examining, consulting, or reviewing physician after

June 30, 2014, through June 30, 2016.” [Id. at 12].

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Under the regulations, a “treating source” includes physicians, psychologists, or “other

acceptable medical source[s]” who provide, or have provided, medical treatment or evaluation and

who have, or have had, an ongoing treatment relationship with the claimant. 20 C.F.R. §§

404.1502; 416.902.4 Social Security Ruling 06-03p governs the opinions of “not acceptable

medical sources.” 2006 WL 2329939, at *2 (Aug. 9, 2006).5 Evidence from those who are “not

acceptable medical sources” or “other sources,” including physician’s assistants and audiologists,

“are important and should be evaluated with key issues such as impairment severity and functional

effects, along with other relevant evidence in the file.” Id.; see 20 C.F.R. § 404.1513(d) (noting

that nurse practitioners, physician’s assistants, and audiologists are considered “other sources”).6

Therefore, as an “other source,” Mr. Clark, Mr. Frantzen, and Dr. Wilde’s opinions were

not subject to any special degree of deference. See, e.g., Meuzelaar v. Comm’r of Soc. Sec., 648

F. App’x 582, 584 (6th Cir. 2016). Interpreting Social Security Ruling 06-03p, the Sixth Circuit

has found that “[o]pinions from non–medical sources who have seen the [Plaintiff] in their

4 The treating physician rule has been abrogated as to claims filed on or after March 27,

2017. See 20 C.F.R. §§ 404.1520c; 416.920c (“We will not defer or give any specific evidentiary

weight, including controlling weight, to any medical opinion(s) . . . including those from your

medical sources.”); see also Revisions to Rules Regarding the Evaluation of Medical Evidence, 82

Fed. Reg. 5844-01, 2017 WL 168819, at *5852–57 (Jan. 18, 2017). The new regulations eliminate

the term “treating source,” as well as what is customarily known as the treating physician rule. Id.

As Plaintiff’s application was filed before March 27, 2017, the previous regulations are

applicable. See id. §§ 404.1527; 416.927.

5 “SSR 06-03p was rescinded [as to claims filed on or after] March 27, 2017, see Notice of

Rescission of Social Security Rulings, 82 Fed. Reg. 15263-01 (March 27, 2017), but was in effect

at the time of the ALJ’s decision, and as such, applies here.” Davis v. Comm’r of Soc. Sec., No.

1:16-CV-2446, 2018 WL 1377790, at *7 n.6 (N.D. Ohio Mar. 19, 2018).

6 While physician’s assistants and audiologists are now deemed acceptable medical

sources, the Commissioner correctly states that this regulation is applicable only to claims filed

after March 27, 2017. See 20 C.F.R. § 404.1502(a)(6), (8).

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professional capacity should be evaluated by using the applicable factors, including how long the

source has known the individual, how consistent the opinion is with other evidence, and how well

the source explains the opinion.” Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007).

The ALJ explicitly considered Mr. Clark and Mr. Frantzen’s status as not acceptable

medical sources and detailed how their opinions were inconsistent with the medical record and

their own examination findings. [Tr. 1420–21]. Similarly, the ALJ reviewed how Dr. Wilde’s

opinion was inconsistent with the medical record. [Tr. 1421]. Ultimately, the ALJ was not

required to assign controlling weight to these opinions, and the ALJ assessed how they were

consistent with the medical record as a whole. The consistency of an opinion with other evidence

in the record is one factor that may be considered in evaluating medical opinion evidence from an

“other source.” See SSR 06-03p, 2006 WL 2329939, at *4.

The ALJ had broad deference in his consideration of these opinions, as “[t]he opinion of a

‘non-acceptable medical source’ is not entitled to any particular weight or deference—the ALJ has

discretion to assign it any weight he feels appropriate based on the evidence of record.” Noto v.

Comm’r of Soc. Sec., 632 F. App’x 243, 248–49 (6th Cir. 2015) (internal citations omitted).

Accordingly, the Court finds that the ALJ appropriately considered Mr. Clark, Mr. Frantzen, and

Dr. Wilde’s opinions and properly stated his reasons for assigning them little weight. See Hill v.

Comm’r of Soc. Sec., 560 F. App’x 547, 550 (6th Cir. 2014) (“Thus, the ALJ properly considered

the [therapist’s] opinion as an ‘other source’ and explained her reasons for giving it ‘little to no

weight.’”).7

7 In his Memorandum [Doc. 14], Plaintiff merely broadly summarizes the medical record

as a whole, and then subsequently argues that the ALJ improperly reviewed Mr. Clark, Mr.

Frantzen, and Dr. Wilde’s opinions. However, without a specific argument, the Court is not

required to examine the entire record and determine which pieces of medical evidence are allegedly

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Plaintiff also challenges the ALJ’s assignment of some weight to the opinions of the

nonexamining state agency physicians, “when those opinions only considered the Plaintiff’s

condition through an erroneous date last insured of June 30, 2014.” [Doc. 14 at 12].

The parties do not dispute that the nonexamining state agency consultants relied upon an

improper date last insured. However, in an analogous situation, “an ALJ may rely on the opinion

of a consulting or examining physician who did not have the opportunity to review later-submitted

medical records if there is ‘some indication that the ALJ at least considered these facts’ before

assigning greater weight to an opinion that is not based on the full record.” Spicer v. Comm’r of

Soc. Sec., 651 F. App’x 491, 493–94 (6th Cir. 2016) (quoting Blakley v. Comm’r of Soc. Sec., 581

F.3d 399, 409 (6th Cir. 2009)). In Spicer, the Sixth Circuit found that the ALJ had satisfied Blakley

by reviewing the medical evidence that was entered after the nonexamining state agency

consultant’s opinion and explaining why the consultant’s opinion was afforded greater weight

despite the subsequent evidence. Id. Similarly, in order for an ALJ to provide “‘some indication’

that he ‘at least considered’ that the source did not review the entire record . . . the record must

give some indication that the ALJ subjected such an opinion to scrutiny.” Kepke v. Comm’r of

Soc. Sec., 636 F. App’x 625, 632 (6th Cir. 2016) (quoting Blakley, 581 F.3d at 409).

Here, the ALJ specifically detailed that the nonexamining state agency consultants “applied

the incorrect date last insured, which precluded them from considering evidence after 2014.” [Tr.

1420]. However, the ALJ’s decision reflects that he made an independent determination based on

all the medical evidence and that his analysis spanned the entire record. See Gibbens v. Comm’r

contradictory with the ALJ’s treatment of these opinions. Moreover, upon the Court’s review, it

finds that the ALJ’s finding that these opinions are inconsistent with the medical record is

supported by substantial evidence.

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of Soc. Sec., 659 F. App’x 238, 247–48 (6th Cir. 2016) (affirming ALJ’s assessment of great weight

to the dated nonexamining state agency consultant’s opinion, rather than the current treating

physician opinion found to be inconsistent with the record, as “the ALJ’s own analysis clearly

spanned the entire record—through the final degenerative changes to [Plaintiff’s] spine that

culminated in a cervical discectomy and fusion, the last medical event included in the record”);

accord Mcwhorter v. Berryhill, No. 3:14-cv-1658, 2017 WL 1364678, at *12 (M.D. Tenn. Apr.

14, 2017); Quinlavin v. Comm’r of Soc. Sec., No. 15-cv-731, 2017 WL 583722, at *4 (N.D. Ohio

Feb. 14, 2017). Moreover, Plaintiff fails to specifically challenge the ALJ’s finding that Mr. Clark,

Mr. Frantzen, and Dr. Wilde’s opinions were inconsistent with the medical record or point to any

evidence which he alleges the ALJ did not consider.

While the ALJ’s RFC determination must be supported by substantial evidence, it is not

necessary that this determination be consistent with an RFC offered by a particular

physician. See Mokbel-Aljahmi v. Commissioner of Social Security, 732 F. App’x 395, 401 (6th

Cir. 2018) (stating the Sixth Circuit has “rejected the argument that a residual functional capacity

determination cannot be supported by substantial evidence unless a physician offers an opinion

consistent with that of the ALJ”). However, “[t]he ALJ must not substitute his own judgment for

a doctor’s conclusion without relying on other medical evidence or authority in the record.” Mason

v. Comm’r of Soc. Sec., No. 1:07-cv-51, 2008 WL 1733181, at *13 (S.D. Ohio Apr. 14, 2008); see

also Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009) (“Although the ALJ may

not substitute his opinions for that of a physician, he is not required to recite the medical opinion

of a physician verbatim in his residual functional capacity finding.”). Further, “[i]n making the

residual functional capacity finding, the ALJ may not interpret raw medical data in functional

terms.” Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008).

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While Deskin has been widely criticized as being overly broad, it has been interpreted to

detail that “[s]uch general rule ‘applies only when an ALJ makes a finding of work-related

limitations based on no medical source opinion or an outdated source opinion that does not include

consideration of a critical body of objective medical evidence.’” Snell v. Comm’r of Soc. Sec., No.

3:18-CV-173, 2019 WL 3406435, at *3 (S.D. Ohio July 29, 2019) (quoting Kizys v. Comm’r of

Soc. Sec., 3:10-CV-25, 2011 WL 5024866, at *2 (N.D. Ohio Oct. 21, 2011)).

In the present case, the Court finds that the ALJ appropriately reviewed all opinions of

record and detailed how Mr. Clark, Mr. Frantzen, and Dr. Wilde’s opinions were inconsistent with

the medical record. Moreover, the ALJ acknowledged that while the opinions of the nonexamining

state agency consultants were generally consistent with the medical record, they did not consider

evidence after 2014. The ALJ thoroughly evaluated the medical record when determining the

RFC, and substantial evidence supports the ALJ’s conclusions.” Mokbel-Aljahmi v. Comm’r of

Soc. Sec., 732 F. App’x 395, 401-02 (6th Cir. 2018) (rejecting the argument that “once the ALJ

decided to give no weight to the physicians’ opinions regarding his ability to work, the ALJ was

required to get the opinion of another physician before setting the residual functional

capacity”); see also Tucker v. Comm’r of Soc. Sec., 775 F. App’x 220, 226 (6th Cir. 2019) (“No

bright-line rule exists in our circuit directing that medical opinions must be the building blocks of

the residual functional capacity finding, but the administrative law judge must make a connection

between the evidence relied on and the conclusion reached.”). Therefore, the Court finds that the

ALJ appropriately reviewed the medical opinions of record, and Plaintiff’s allegations of error do

not constitute a basis for remand.

C. Plaintiff’s Subjective Allegations

Plaintiff asserts that the ALJ failed to properly weigh his subjective allegations, as Plaintiff

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specifically challenges the ALJ’s finding that the totality of the medical evidence was inconsistent

with his allegations of disabling pain, fatigue, and radiculopathy. [Doc. 14 at 14]. Plaintiff submits

that he was not required to establish the severity of his disabling pain by objective evidence, and

that he “clearly suffers from very severe back, neck and arm difficulties.” [Id.]. The

Commissioner responds that the ALJ “properly identified the inconsistencies in the record that

undermined Plaintiff’s disability claim, including the objective medical evidence, Plaintiff’s

minimal and conservative treatment (including declining additional treatment), Plaintiff’s

improvement with treatment, and Plaintiff’s reported daily activities.” [Doc. 18 at 21].

In the disability decision, the ALJ found that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s

statements concerning the intensity, persistence and other limiting effects of these symptoms are

not entirely consistent with the medical evidence and other evidence in the record.” [Tr. 1418].

The ALJ’s decision postdates Social Security Ruling 16-3p, which eliminates the use of

the term “credibility” from the applicable policy regulation and clarifies that a “subjective

symptom evaluation is not an examination of an individual’s character.” 2016 WL 1119029, at *1

(Mar. 16, 2016)8; see also Rhinebolt v. Comm’r of Soc. Sec., No. 2:17-CV-369, 2017 WL 5712564,

at *8 (S.D. Ohio Nov. 28, 2017) (noting that under SSR 16-3p, “an ALJ must focus on the

consistency of an individual’s statements about the intensity, persistence and limiting effects of

8 At the time Plaintiff filed his original claim for disability benefits, SSR 96-7p governed

the Commissioner’s analysis of a claimant’s subjective complaints. On March 28, 2016, however,

SSR 16-3p expressly superseded Ruling 96-7p. In 2017, the SSA clarified that it would apply SSR

16-3p “when [its adjudicators] make determinations and decisions on or after March 28, 2016.”

SSR 16-3p, 2017 WL 5180304, *13 n.27 (Oct. 25, 2017). See, e.g., Putnam v. Berryhill, No. 17-

CV-01821-CMA, 2018 WL 3429201, at *7 (D. Colo. July 16, 2018), aff'd sub nom., Putnam v.

Comm’r, SSA, 789 F. App’x 694 (10th Cir. 2019).

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symptoms, rather than credibility”), report and recommendation adopted by, 2018 WL 494523

(S.D. Ohio Jan. 22, 2018). However, “[t]he two-step process and the factors ALJs consider when

assessing the limiting effects of an individual’s symptoms have not changed with the advent of

SSR 16-3p.” Holder v. Comm’r of Soc. Sec., No. 1:17-CV-186-SKL, 2018 WL 4101507, at *10

n.5 (E.D. Tenn. Aug. 28, 2018).

The ALJ is still tasked with first determining whether there is an “underlying medically

determinable physical or mental impairment(s) that could reasonably be expected to produce an

individual’s symptoms, such as pain.” SSR 16-3p, 2016 WL 1119029, at *2–3. Then, the ALJ is

responsible for determining the intensity, persistence, and limiting effects of an individual’s

symptoms, including assessing their: (1) daily activities; (2) the location, duration, frequency, and

intensity of pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4)

the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken

to alleviate pain or other symptoms; (5) treatment, other than medication, an individual receives

or has received for relief of pain or other symptoms; (6) any measures other than treatment an

individual uses or has used to relieve pain or other symptoms; and (7) any other factors concerning

an individual’s functional limitations and restrictions due to pain or other symptoms. Id. at *4–8.

Here, with respect to Plaintiff’s back, neck, and arm pain, the ALJ found that “x-ray and

MRI studies on the lumber spine between 2009 and 2016 confirmed merely mild degenerative

changes without nerve compromise or any significant stenosis or disc space narrowing.” [Tr.

1418]. The ALJ also noted that “imaging studies . . . confirmed ‘normal’ elbows and only ‘mild’

or ‘minimal’ osteoarthritic changes in the hands/wrists and shoulders.” [Tr. 1419]. Moreover,

the ALJ noted that “[t]he record otherwise does not reflect any specialized treatment for these

conditions since the alleged onset date through the date last insured.” [Id.].

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Additionally, the ALJ found that under SSR 16-3p, Plaintiff was more capable than alleged

due to “numerous diagnostic imaging studies of record have confirmed no more than mild

orthopedic findings without nerve compression or any significant stenosis,” as well as that

“EMG/NCV studies of record routinely ruled out radicular and neuropathic signs in the

extremities.” [Tr. 1421]. The ALJ detailed that Plaintiff was treated conservatively with

hydrocodone, that his primary care providers “routinely observed the claimant with normal-to-

mild findings and in no acute distress, despite the claimant’s extreme reports of 9/10 and 10/19

pain during exams,” and Plaintiff declined pain management referrals for injections. [Id.].

“Despite the linguistic clarification, courts continue to rely on pre-SSR 16-3p authority

providing that the ALJ’s credibility determinations are given great weight.” Getz v. Comm’r of

Soc. Sec., No. CV 18-11625, 2019 WL 2710053, at *3–4 (E.D. Mich. June 10, 2019), report and

recommendation adopted by, 2019 WL 2647260 (E.D. Mich. June 27, 2019) (citing Kilburn v.

Comm’r of Soc. Sec., No. 1:17-CV-603, 2018 WL 4693951, at *7 (S.D. Ohio Sept. 29, 2018); Duty

v. Comm’r of Soc. Sec., No. 2:17-CV-445, 2018 WL 4442595, at *6 (S.D. Ohio Sept. 18, 2018)).

Plaintiff’s arguments about his subjective allegations are within the ALJ’s discretion. See

Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (recognizing that the Sixth

Circuit holds the ALJ’s credibility findings to be virtually “unchallengeable”) (internal citations

omitted). An ALJ’s findings on credibility “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). Here, the Court

finds that the ALJ appropriately reviewed the intensity, persistence and limiting effects of

Plaintiff’s symptoms pursuant to SSR 16-3p. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709,

713–14 (6th Cir. 2012) (“As long as the ALJ cite[s] substantial, legitimate evidence to support his

22

factual conclusions, we are not to second-guess.”). Accordingly, the Court finds that the ALJ’s

finding that the objective record evidence did not support Plaintiff’s claims of disabling limitations

is supported by substantial evidence. The ALJ was not required to adopt Plaintiff’s testimony in

full, and the ALJ appropriately detailed his reasoning for finding that Plaintiff’s statements

concerning the intensity, persistence and limiting effects of his symptoms were not entirely

consistent with the medical evidence and other evidence in the record.

D. ALJ’s Step Four Finding

Plaintiff maintains that the ALJ’s finding that he could return to his past relevant work as

a sales agent and insurance clerk is not supported by substantial evidence “as it does not include

all of the uncontradicted impairments . . . particularly his difficulty in using his hands and

emotional impairments.” [Doc. 14 at 13]. Plaintiff points to Mr. Frantzen’s opinion that he would

have difficulty using his right arm and with his lungs, that he would have difficulty using his left

hand for more than two hours a day, as well as that he would be limited to no more than part time

work with a break every thirty minutes. [Id.]. Plaintiff also repeats his arguments that the ALJ

failed to find no mental impairments stemming from his depression.

During the hearing, the VE testified that an individual of Plaintiff’s age, education, and

work experience, who had limitations identical to those in Plaintiff’s RFC, could perform

Plaintiff’s past work as a timeshare sales representative and as a medical reimbursement

technician, both as actually performed and as generally performed. [Tr. 1449]. In the disability

decision, the ALJ found that Plaintiff was not disabled because he “was able to perform these

positions as actually and generally performed.” [Tr. 1423].

At step five, the Commissioner has the burden of proving that other work exists in the

national economy that the claimant can perform given the claimant’s RFC and vocational factors,

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including age, education, and work skills. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th

Cir. 1997) (citing 20 C.F.R. § 404.1520). Where the Commissioner relies upon VE testimony to

demonstrate the existence of a substantial number of jobs that a claimant can perform, the VE must

testify on the basis of the claimant’s “residual functional capacity and . . . age, education, and work

experience” in order to assess whether a claimant “can make an adjustment to other work.” See 20

C.F.R. § 1520(a)(iv) & (v); Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004). “[I]n

formulating a hypothetical question, an ALJ is only required to incorporate those limitations which

he has deemed credible.” Gant v. Comm’r of Soc. Sec., 372 F. App’x 582, 585 (6th Cir. 2010)

(citations omitted); see Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 118–19 (6th Cir.

1994) (“It is well established that an ALJ may pose hypothetical questions to a vocational expert

and is required to incorporate only those limitations accepted as credible by the finder of fact.”).

Here, the Court has already detailed that the ALJ’s assignment of little weight to Mr.

Frantzen and Mr. Clark’s opinions, as well as his finding that Plaintiff’s depression was a

nonsevere impairment, is supported by substantial evidence. See, e.g., Winslow v. Comm’r of Soc.

Sec., 566 F. App’x 418, 421 (6th Cir. 2014) (“The record reflects, however, that the hypothetical

questions were proper because the ALJ incorporated all of the functional limitations that she

deemed credible.”).

Although Plaintiff would interpret the medical evidence differently, the Court finds that

the ALJ’s determination was within his “zone of choice.” Blakley v. Comm’r of Soc. Sec., 581 F.3d

399, 407 (6th Cir. 2009) (holding that “[t]he substantial-evidence standard . . . presupposes that

there is a zone of choice within which the decisionmakers can go either way” and that as long as

substantial evidence supports the ALJ’s finding, the fact that the record contains evidence which

could support an opposite conclusion is irrelevant) (quotations omitted); see also Huizar v. Astrue,

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No. 3:07CV411-J, 2008 WL 4499995, at *3 (W.D. Ky. Sept. 29, 2008) (‘While plaintiff

understandably argues for a different interpretation of the evidence from that chosen by the ALJ,

the issue is not whether substantial evidence could support a contrary finding, but simply whether

substantial evidence supports the ALJ’s findings.”).

Additionally, Plaintiff contends that the ALJ failed to perform any “meaningful analysis of

the fact that the insurance job at the [VA] was in fact a Job for a disabled veteran.” [Doc. 14 at

14]. However, if an individual can perform his past relevant work, either as he performed it, or as

the work is performed in the national economy, the claimant is not disabled. See SSR 82-61: SSR

82-62. Therefore, a claimant will be “not disabled” at step four of the sequential evaluation if he

is able to perform his past relevant work as he performed it or as that job is performed in the

national economy. Garcia v. Sec’y of HHS, 46 F.3d 552, 556-57 (6th Cir. 1995) (citing SSR 82-

61); see, e.g., Bentulan v. Berryhill, No. 3:15-CV-381-HBG, 2017 WL 571502, at *3 (E.D. Tenn.

Feb. 13, 2017). Moreover, Plaintiff fails to challenge the ALJ’s finding that he could perform his

past work as insurance clerk both actually and as generally performed.

VI. CONCLUSION

Based on the foregoing, Plaintiff's Motion for Judgment on the Pleadings [Doe. 13] will

be DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 17] will be

GRANTED. The decision of the Commissioner will be AFFIRMED. The Clerk of Court will

be DIRECTED to close this case.

ORDER ACCORDINGLY.

(ope Anbar

United States Magistrate Judge

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