Elliott v. Social Security Administration

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

AARON J. ELLIOTT, )

)

Plaintiff, )

) NO. 3:18-cv-00720

v. )

)

ANDREW M. SAUL, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

Before the Court is Aaron J. Elliott’s Motion for Judgment on the Administrative Record

(Doc. No. 13), to which the Commissioner of Social Security (“Commissioner”) has responded

(Doc. No. 15).1 Upon consideration of the parties’ briefs and the transcript of the administrative

record (Doc. No. 9),2 the motion will be denied and the decision of the Commissioner’s decision

will be affirmed.

I. Introduction

Elliott filed an application for Disability Insurance Benefits (“DIB”) under Title II of the

Social Security Act on September 14, 2016, alleging disability onset as of December 20, 2005, due

to post-traumatic stress disorder (“PTSD”), asthma like symptoms, migraines, depression, anxiety,

and sleep apnea. (Tr. 12, 92-93, 168, 206.) Elliott’s claim was denied at the initial level on

November 7, 2016, and on reconsideration on April 26, 2017. (Tr. 12, 111, 119.) Elliott

1 In order to ensure the prompt resolution of this matter, the Court will vacate the referral to

the Magistrate Judge.

2 Referenced hereinafter by “Tr.” followed by the page number found in bolded typeface at

the bottom right corner of the page.

subsequently requested de novo review of his case by an administrative law judge (“ALJ”). (Tr. 12,

121-22.) The ALJ heard the case on February 6, 2018, when Elliott appeared with counsel and gave

testimony. (Tr. 12, 31-83.) Testimony was also received by Elliott’s ex-wife and a vocational

expert. (Tr. 12, 63-82.) The ALJ issued a written decision finding Elliott not disabled. (Tr. 12-26.)

That decision contains the following enumerated findings:

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

Act on March 31, 2013.

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

from his alleged onset date of December 20, 2005 through his date last

insured of March 31, 2013 (20 C.F.R. 404.1571 et seq.).

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

impairments: posttraumatic stress disorder, asthma, and obesity (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 C.F.R. Part 404, Subpart P, Appendix 1 (20

C.F.R. 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 had the residual functional

capacity to perform a full range of work at all exertional levels but with the

following nonexertional limitations: He can never climb ladders, ropes and

scaffolds. He must avoid concentrated exposure to extreme cold and extreme

heat, dust, odors, fumes, gases, smoke, and pulmonary irritants. He cannot

work with or near dangerous and moving type of equipment or machinery,

moving mechanical parts and unprotected heights but can operate a motor

vehicle. He can understand, remember and apply simple to multi-step

detailed instructions and tasks. He can interact occasionally with supervisors,

co-workers and with the general public. He can maintain concentration,

persistence and pace for two hours at a time over an eight-hour workday. He

can adapt to infrequent changes in a work setting.

6. Through the date last insured, the claimant was unable to perform any past

relevant work (20 C.F.R. 404.1565).

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7. The claimant was born on July 21, 1983 and was 29 years old, which is

defined as a younger individual age 18-49, on the date last insured (20 C.F.R.

404.1563).

8. The claimant has at least a high school education and is able to communicate

in English (20 C.F.R. 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

transferable job skills (See SSR 82-41 and 20 C.F.R. 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 C.F.R. 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 December 20, 2005, the alleged onset date, through

March 31, 2013, the date last insured (20 C.F.R. 404.1520(g)).

(Tr. 14, 15, 16-17, 24, 25, 26.) On June 19, 2018, the Appeals Council denied Elliott’s request for

review of the ALJ’s decision (Tr. 1-8), thereby rendering that decision the final decision of the

Commissioner.

II Standard of Review

The Court is limited to determining whether the Commissioner’s decision concerning

Elliott’s disability is supported by substantial evidence. “Under the substantial evidence standard,

a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence’

to support the agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (emphasis deleted)). “[T]he

threshold for such evidentiary sufficiency is not high.” Id. at 1154. Substantial evidence is “more

than a mere scintilla.” Id. (citations omitted). “It means – and means only – ‘such relevant evidence

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as a reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Consol.

Edison, 305 U.S. at 229). The role of the Court is to apply this standard, not “resolve conflicts in

evidence[ ] or decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).

III. Analysis

A. The Five-Step Inquiry

The claimant bears the ultimate burden of establishing 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 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). The claimant’s “physical or mental impairment” must “result[] from anatomical,

physiological, or psychological abnormalities which are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). The Commissioner considers a

claimant’s case under a five-step sequential evaluation process, described by the Sixth Circuit Court

of Appeals as follows:

(1) a claimant who is engaging in substantial gainful activity will not be

found to be disabled regardless of medical findings; (2) a claimant who does

not have a severe impairment will not be found to be disabled; (3) a finding

of disability will be made without consideration of vocational factors, if a

claimant is not working and is suffering from a severe impairment which

meets the duration requirement and which meets or equals a listed

impairment in Appendix 1 to Subpart P of the Regulations. Claimants with

lesser impairments proceed to step four; (4) a claimant who can perform

work that he has done in the past will not be found to be disabled; and (5) if

a claimant cannot perform his past work, other factors including age,

education, past work experience and residual functional capacity must be

considered to determine if other work can be performed.

Parks v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm’r

of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. § 404.1520. The claimant bears

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the burden through step four of proving the existence and severity of the limitations her

impairments cause and the fact that she cannot perform past relevant work; however, at step

five, “the burden shifts to the Commissioner to ‘identify a significant number of jobs in the

economy that accommodate the claimant’s residual functional capacity... .” Kepke v.

Comm’r of Soc. Sec., 636 F. App’x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm’r

of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)).

The Commissioner can carry its burden at the fifth step of the evaluation process by

relying on the Medical-Vocational Guidelines, otherwise known as “the grids,” but only if

a non-exertional impairment does not significantly limit the claimant, and then only when

the claimant’s characteristics precisely match the characteristics of the applicable grid rule.

See Anderson v. Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010); Wright v.

Massanari, 321 F.3d 611, 615-16 (6th Cir. 2003). Otherwise, the grids only function as a

guide to the disability determination. Wright, 321 F.3d at 615-16; see also Moonv., Sullivan,

923 F.2d 1175, 1181 (6th Cir. 1990). Where the grids do not direct a conclusion as to the

claimant’s disability, the SSA must rebut the claimant’s prima facie case by coming forward

with proof of the claimant’s individual vocational qualifications to perform specific jobs,

typically through vocational expert testimony. Anderson, 406 F. App’x at 35; see Wright,

321 F.3d at 616 (quoting SSR 83-12, 1983 WL 31253, *4 (Jan. 1, 1983)).

When determining a claimant’s residual functional capacity (“RFC”) at steps four

and five, the Commissioner must consider the combined effect of all the claimant’s

impairments, mental and physical, exertional and non-exertional, severe and non-severe. 42

USS.C. §§ 423(d)(2)(B), (5)(B); Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir.

2014) (citing 20 C.F.R. § 404.1545(e)).

B. Elliott’s Statement of Errors

Elliott argues that the ALJ erred (1) by failing to properly consider and give

appropriate weight to the opinion evidence from his treating psychiatrist; and (2) by

improperly discounting his credibility.3 (Doc. No. 14 at 7, 12.)

1. Whether the ALJ failed to properly consider and give

appropriate weight to the opinion evidence from Elliott's treating

psychiatrist, Dr. Sharone E. Barwise.

Elliott contends that the ALJ failed to properly evaluate or give any explanation of

the weight accorded to the medical opinion of Dr. Sharone E. Barwise, his treating

psychiatrist, while giving “some weight” to two non-examining state agency physicians who

stated they could not form an opinion of Elliott’s limitations. (Doc. No. 14 at 8, 11.) In

response, the Commissioner contends that the ALJ properly evaluated Dr. Barwise’s opinion

by finding it was entitled to little weight because it was inconsistent with Dr. Barwise’s

treatment record and the holistic record. (Doc. No. 15 at 4.)

Social security regulations and rulings establish the framework for an ALJ’s

consideration of medical opinions. See 20 C.F.R. § 404.1527; SSR 96-2p.4 Under the so-

3 Elliott’s medical record, as found by the ALJ can be found at pages 18 through 21 of the

administrative transcript. For purposes of efficiency, the Court assumes the familiarity of the parties

with the record and only repeats it below as necessary to address Elliott’s claims of error.

4 In 2017, new SSA regulations came into effect. The newest regulations apply only to

claims filed with the SSA on or after March 27, 2017. Thus, the Court applies the regulations that

were in effect at the time of Elliott’s filing on September 14, 2016. Janeczek v. Comm’r of Soc.

Sec., No. 1:18-CV-629, 2018 WL 6419995, at *4 (W.D. Mich. Dec. 6, 2018) (collecting cases); see

20 C.F.R. § 404.614 (generally, an application for benefits is deemed filed on the day it is received

by an SSA employee).

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called treating physician rule, the ALJ is generally required to give the treating physician’s

opinion controlling weight if it is “well supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence”

before the ALJ. 20 C.F.R. § 404.1527(c)(2); see also Wilson v. Comm’r of Soc. Sec., 378

F.3d 541, 544 (6th Cir. 2004). The ALJ “is not bound by conclusory statements of doctors,

particularly where they are unsupported by detailed objective criteria and documentation.”

Buxton, 246 F.3d at 773. Rather, “[t]he more a medical source presents relevant evidence

to support an opinion, particularly medical signs and laboratory findings, the more weight

[an ALJ] will give that opinion.” 20 C.F.R. § 404.1527(c)(3); see also Bell v. Barnhart, 148

F, App’x 277, 285 (6th Cir. 2014) (declining to give weight to a doctor’s opinion that was

supported by only the claimant’s reported symptoms).

Ifthe ALJ declines to give a treating physician’s opinion controlling weight, the ALJ

must then balance the following factors to determine what weight to give it: “the length of

the treatment relationship and the frequency of examination, the nature and extent of the

treatment relationship, supportability of the opinion, consistency of the opinion with the

record as a whole, and specialization of the treating source.” Wilson, 378 F.3d at 544 (citing

20 C.F.R. § 404.1527(d)(2) (2004)). When determining the weight to give the opinion of a

treating physician, ALJs need not explicitly mention in their decisions every factor under 20

C.F.R. § 404.1527(d). See Adams v. Astrue, No. 1:07-cv-2543, 2008 WL 9396450, at *3,

n.5 (N.D. Oh. Sept. 25, 2008) (citing Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665

(6th Cir. 2004)). However, the regulations require the ALJ to give “good reasons” for the

weight given to a treating source’s opinion. 20 C.F.R. § 404.1527(c)(2). Those good reasons

must be “supported by the evidence in the case record, and must be sufficiently specific to

make clear to any subsequent reviewers the weight the adjudicator gave to the treating

source’s medical opinion and the reasons for that weight.” S.S.R. 96–2p, 1996 WL 374188

at *5 (1996). This procedural safeguard “ensures that the ALJ applies the treating physician

rule and permits meaningful review of the ALJ’s application of the rule.” Wilson, 378 F.3d

at 544.

On March 19, 2018, Dr. Barwise completed a medical source statement (“MSS”) and

opined that Elliott had extreme limitations in the following work-related mental activities:

“[u]nderstand and remember simple instructions”; “[c]arry out simple instructions”; “[t]he

ability to make judgments on simple work-related decisions”; “[u]nderstand and remember

complex instructions”; “[c]arry out complex instructions”; and “[t]he ability to make

judgments on complex work-related decisions.” (Tr. 1914.) Dr. Barwise opined that Elliott

was markedly limited in his ability to interact appropriately with the public, with supervisors

and with coworkers, and was extremely limited in the ability to respond appropriately to

usual work situations and to changes in a routine work setting. (Tr. 1915.) Dr. Barwise also

opined that Elliott had significant difficulty being around people, was socially isolated, and

was not able to tolerate changes in work or home environment. Id. Dr. Barwise further

opined that Elliott experienced marked anxiety and hypervigilance and could not recall

simple instructions. Id. Dr. Barwise stated that Elliott’s limitations were present since early

2013. Id.

The ALJ determined that Dr. Barwise’s opinion should be given little weight, stating:

The undersigned assigns little weight to this opinion as it pertains to

the claimant’s functioning prior to March 2013 because it is

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inconsistent with Dr. Barwise’s own treatment notes and the record

as a whole. Dr. Barwise opined that the claimant had extreme

limitations in understanding and remembering simple instructions.

However, in February 2013 treatment notes Dr. Barwise stated that

the claimant was a fair historian, noting that his narratives were

“replete with multiple episodes of ... being traumatized ... through the

course of his life prior, during, and after military service.” Dr.

Barwise added that the claimant was not able to tolerate changes in

home environment. However, February 2013 notes show the claimant

had recently moved from Memphis to Nashville. Dr. Barwise

indicated that the claimant isolated himself socially. However, March

2013 notes show the claimant lived with two roommates, one of

whom was in the process of becoming his caregiver. Finally, January

2013 notes show the claimant was looking for work and eventually

wanted to return to school to complete his education. This seems

inconsistent with the degree of limitations discussed by Dr. Barwise.

(Ex. 6F)

(Tr. 23-24.)

Elliott first argues that the ALJ makes “conflicting statements about Dr. Barwise’s opinion

evidence and the presence of opinion evidence in the file.” (Doc. No. 14, at 8-9 (citing Tr. 23).) He

notes that the ALJ’s statement about the record’s lack of “any opinions from treating or examining

physicians indicating that the claimant is disabled or even has limitations greater than those

determined in this decision” is contradicted by the VA rating Elliott 70% disabled because of his

PTSD, by the VA approving Elliott for the VA Family Caregiver Program stipend, and because the

ALJ’s statement “does not mention the significant limitations assessed by Dr. Barwise.” (Id. (citing

Tr. 23)). Although the Sixth Circuit has not specified what weight a disability rating from the

Veterans Administration is entitled to, it has expressly stated that an ALJ is “not bound to accept

it.” Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 510 (6th Cir. 2013); see also LaRiccia v.

Comm’r of Soc. Sec., 549 F. App’x 377, 387 (6th Cir. 2013) (“This court has not set forth a specific

standard regarding the weight the Commissioner should afford a 100% disability determination by

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the VA.”). Moreover, Title 20 C.F.R. § 404.1504 provides:

A decision by any . . . other governmental agency about whether you

are disabled . . . is based upon its rules and is not our decision about

whether you are disabled . . . . We must make a disability . . .

determination based on social security law. Therefore, a

determination made by another agency that you are disabled . . . is

not binding on us.

Id.5

The ALJ considered that the September 18, 2012 VA records showed that Elliott and his wife

were approved for the Caregiver Program stipend and that Elliott was able to make decisions about

his own care. (Tr. 21, 368-89, 388-94.) The ALJ also noted that the VA records reflected that Elliott

reported having problems with shopping, transportation, and managing finances, but that Elliott did

not have any problems with preparing meals, doing housework or managing medications. (Tr. 21,

370.) The ALJ further considered Elliott’s VA disability rating. (Tr. 21, 22.) The ALJ stated, in part,

as follows:

The Veteran’s Administration rated the claimant 70% disabled due

to service-connected impairments prior to his date last insured. While

the disability determinations of other governmental agencies are

entitled to consideration, they are not entitled to any particular weight

in determining disability for Social Security purposes (Social

Security Ruling 06-3p). In this case, the undersigned notes that the

Veteran’s Administration’s finding is not based on Agency policy or

definitions of disability. Therefore, it is entitled to little weight. (Ex.

4F, p. 242-243)

Despite the claimant’s PTSD, asthma, and obesity, he has not

required any repeated hospitalizations of an extended duration nor

needed frequent ER visits due to exacerbations. He took part in a

six-week residential PTSD program with the VA in early 2011 where

5 Effective March 27, 2017, this section was amended. However, because Elliott filed his

application for disability benefits with the Social Security Administration on September 14, 2016,

the Court applies the version of 20 C.F.R. § 404.1504 in effect at the time of his filing.

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he got along with his peers and staff and was allowed to go out on

passes with the group and to handle personal business. Apart from

this program, the claimant’s PTSD was handled on an outpatient

basis prior to the date last insured.

(Tr. 22.)

Here, the ALJ recognized that the VA’s disability rating is not entitled to any particular

weight as such a finding is not based on SSA policy or definitions, and properly considered the VA

rating along with the record as a whole. As to Elliott’s argument that the ALJ’s statement was

contradictory because it did not mention the limitations assessed by Dr. Barwise, the ALJ provided

an evaluation of Dr. Barwise’s opinion immediately following this statement. Thus, based upon this

record, to the extent there is anything contradictory about the ALJ’s statement, such a contradiction,

if any, is harmless as the ALJ properly considered the VA record and Dr. Barwise’s opinion.

Elliott next objects to the ALJ’s attempt to discredit Dr. Barwise’s opinion that Elliott was

unable to tolerate changes in home environment by noting that Barwise’s February 2013 treatment

notes showed that Elliott had recently moved from Memphis to Nashville. (Doc. No. 14 at 9.) Elliott

argues that March 2013 “treatment notes show that the reason for Elliott’s move was to be near

family and that his current roommates, one of whom was in the process of becoming his Family

Caregiver, were ‘supportive,’” and that “[t]his does not exactly describe a social situation in which

the Elliott was voluntarily engaged in normal socialization with other people, but rather one in which

the one roommate was agreeing to provide supportive ADL care for him.” Id. The ALJ noted that

Dr. Barwise opined that Elliott could not “tolerate changes in home environment,” yet Elliott

showed the ability to move from Memphis to Nashville. (Tr. 24, 1698, 1915.) While Elliott provides

a justification for this move, the fact remains that Elliott was able to change his home environment.

Moreover, although one of Elliott’s roommates was going to act as his caregiver, Elliott was willing

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and able to live with two non-family members, one of whom was not his caregiver. Thus, while

Elliott may provide a plausible explanation that his actions of moving and living with two other

people, albeit one being his caregiver, are not inconsistent with Dr. Barwise’s opinion, the Court

cannot say that the ALJ’s conclusion that such actions were inconsistent with Dr. Barwise’s opinion

is not supported by substantial evidence.

Further, the ALJ also noted that Elliott was looking for work and eventually wanted to return

to school to complete his education, activities that would contradict Dr. Barwise’s opinion that

Elliott could not tolerate changes in home or work environment and that Elliott isolated himself

socially. (Tr. 1915.) Elliott asserts that the record actually states that Elliott “‘would eventually like

to go back to school if he can continue to improve his PTSD symptoms,’” (Doc. No. 14, at 9

(quoting Tr. 1149) (emphasis in original)), apparently arguing that Elliott’s looking for work and

intention of returning to school were contingent on the improvement of his symptoms. However, the

use of the phrase “continue to improve” indicates that Elliott’s symptoms were improving. In any

event, Elliott’s willingness to look for work and return to school contradict Dr. Barwise’s opinion.

Elliott asserts that there is a contradiction in the January 2013 report as one page of the report

describes Elliott as “not” looking for work, (Tr. 1147), and the last page, (Tr. 1149), states that

Elliott was “now” looking for work and argues that the ALJ failed to discuss or reconcile these

contradictions. However, the statement that Elliott was looking for work is corroborated by the April

2013 treatment records that likewise state that Elliott was “now looking for work.” (Tr. 1673.)

In discrediting Dr. Barwise’s opinion, the ALJ noted the discrepancy between Dr. Barwise’s

opinion about Elliott having extreme limitations in understanding and remembering simple

instructions, and Dr. Barwise’s February 2013 treatment notes stating that Elliott was a fair

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historian. (Tr. 21, 24, 1698.) The ALJ’s decision also noted that the February 2013 treatment notes

showed that Elliott’s “GAF score was in the 60 to 65 range, indicating moderate to mild limitations,”

and that Elliott “reported that implementing memory/attention strategies were helpful in his daily

life when he utilized them.” (Tr. 21, 1696-1702.) The ALJ further noted that in March 2011, Elliott

completed a six-week residential PTSD program and that he “got along with peers and staff without

incident” and that “[h]is judgment and insight were noted to be good as evidenced by entering and

completing the program and recognizing a need for treatment.” (Tr. 20, 366.) See Crum v. Comm’r

of Soc. Sec., No. 15-3244, 2016 WL 4578357, at *7 (6th Cir. Sept. 2, 2016) (“Elsewhere in her

decision, the ALJ laid out in detail the treatment records that showed that Crum could return to

normal work activity. . . . No doubt, the ALJ did not reproduce the list of these treatment records a

second time when she explained why Dr. Bell’s opinion was inconsistent with this record. But it

suffices that she listed them elsewhere in her opinion.”) (citing Forrest v. Comm’r of Soc. Sec., 591

F. App’x 359, 366 (6th Cir. 2014)).

Elliott next argues that the ALJ “never discusses what weight, if any, is given to Dr.

Barwise’s opinion,” and that the ALJ did not discuss any of the factors in 20 C.F.R. § 404.1527(c)

regarding Dr. Barwise’s opinion. (Doc. No. 14, at 10.) In not assigning controlling weight to Dr.

Barwise’s opinion, the ALJ clearly stated that “[t]he undersigned carefully considered the opinion

of Sharone Barwise, M.D., the claimant’s treating psycahirtist. . . .” and “[t]he undersigned assigns

little weight to this opinion as it pertains to the claimant’s functioning prior to March 2013 because

it is inconsistent with Dr. Barwise’s own treatment notes and the record as a whole.” (Tr. 23-24)

(emphasis added.) As previously discussed, the ALJ cited inconsistencies between Dr. Barwise’s

opinion and her treatment notes, as well as with other medical evidence in the record.

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In short, the record demonstrates that the ALJ evaluated Dr. Barwise’s opinion and gave

sufficient reasons for the weight afforded to it.

Elliott also challenges the ALJ’s decision to give “some weight” “to two non-examining state

agency physicians who stated they could not form an opinion of Elliott’s limitations,” and argues

that “there is no discussion whatsoever about how [Dr. Barwise’s] opinion should be weighed in

comparison to other opinion evidence or lack thereof in the file.” (Doc. No. 14, at 10-11.) However,

once an ALJ properly discredits a treating physician’s opinion, the treating physician rule no longer

applies. Kepke, 636 F. App’x at 633; Kitchen v. Colvin, No. 3:16-CV-00020, 2017 WL 395087, at

*9 (M.D. Tenn. Jan. 30, 2017), report and recommendation adopted sub nom, Kitchen v. Berryhill,

No. 3:16-CV-0020, 2017 WL 1018432 (M.D. Tenn. Mar. 16, 2017). “[O]pinions from nontreating

and nonexamining sources are never assessed for ‘controlling weight.’” Gayheart v. Comm’r of Soc.

Sec., 710 F.3d 365, 376 (6th Cir. 2013).

“An ALJ may consider the opinion of a non-examining physician designated by the Secretary

in determining whether a claimant has medically determinable impairments.” Neal v. Astrue, No.

3:08-0464, 2009 WL 2135792, at *7 (M.D. Tenn. July 16, 2009) (citing Reynolds v. Secretary, 707

F.2d 927, 930 (6th Cir.1983)). “State agency medical and psychological consultants . . . are highly

qualified physicians [and] psychologists . . . who are also experts in Social Security disability

evaluation,’ and whose findings and opinions the ALJ ‘must consider... as opinion evidence.’” Lee

v. Comm’r of Soc. Sec., 529 F. App’x 706, 712 (6th Cir. 2013) (citation omitted); 20 C.F.R. §

404.15279(e)(2)G). “In appropriate circumstances, opinions from State agency medical and

psychological consultants . . . may be entitled to greater weight than the opinions of treating or

examining sources.” SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996); see also Hoskins v. Comm’r

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of Soc. Sec., 106 F. App’x 412, 415 (6th Cir. 2004) (“State agency medical consultants are

considered experts and their opinions may be entitled to greater weight if their opinions are

supported by the evidence.”) It is the function of the ALJ to resolve the conflicts between the

medical opinions. Justice v. Comm’r of Soc. Sec., 515 F. App’x 583, 588 (6th Cir. 2013) (“In a battle

of the experts, the agency decides who wins. The fact that [the claimant] now disagrees with the

ALJ’s decision does not mean that the decision is unsupported by substantial evidence.”)

Here, the ALJ considered the administrative findings of fact made by the State agency

non-examining expert sources. (Tr. 24.) In giving these opinions “some weight,” the ALJ stated:

On November 4, 2016, Fawz Schoup, Ph.D., opined that the record

was technically insufficient to rate the claim prior to the date last

insured. Karla Montague-Brown, M.D., affirmed these findings at the

reconsideration level. The undersigned accords these opinions some

weight because the physicians thoroughly evaluated the objective

medical evidence in this claim, have expertise in the field, and

provided specific reasons for their assessments.

Id.

Elliott argues that the ALJ improperly accorded some weight to two non-examining State

agency consultants “who explicitly stated they could not form an opinion as to Elliott’s limitations.”

(Doc. No. 16, at 2.) First, the ALJ properly considered the State agency non-examining expert

sources’ opinions in conjunction with the whole record and did not give these opinions controlling

weight, but only “some.” Second, Elliott ignores that throughout the decision, the ALJ specifically

stated that Elliott must show that he was disabled by his date last insured, which was March 31,

2013. (Tr. 14, 18, 23.) As discussed by the ALJ, the evidence regarding the relevant period of time

was inconsistent with and did not support the opinion of Dr. Barwise. “In order to establish

entitlement to disability insurance benefits, an individual must establish that he became ‘disabled’

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prior to the expiration of his insured status.” Moon, 923 F.2d at 1182. “‘Evidence of disability

obtained after the expiration of insured status is generally of little probative value.’” Grisier v.

Comm’r of Soc. Sec., 721 F. App’x 473, 477 (6th Cir. 2018) (quoting Strong v. Soc. Sec. Admin.,

88 F. App’x 841, 845 (6th Cir. 2004)). The State agency consultants’ opinions recognized the lack

of evidence in Elliott’s medical record showing that he was disabled because of PTSD by March 31,

2013. (Tr. 24, 96-97, 100, 106-08, 110.) While Elliott attempts to defend Dr. Barwise’s opinion,

Elliott does not cite to actual treatment records from Dr. Barwise during the relevant period that

support Dr. Barwise’s opinion, which was given five years after Elliott’s date last insured. Dr.

Barwise’s February 21, 2013 treatment records, cited by the ALJ, show that Elliott reported that his

mood had been mostly stable, but that he had episodic anxiety, that his medications were helpful for

sleep, and that he had “no current symptoms of major depression, mania or hypomania.” (Tr. 21,

1698.) “[T]he claimant bears the burden of producing sufficient evidence to show the existence of

a disability.” Watters v. Comm’r of Soc. Sec. Admin., 530 F. App’x 419, 425 (6th Cir. 2013);

Peterson v. Comm’r of Soc. Sec., 552 F. App’x 533, 540 (6th Cir. 2014) (“Merely marshalling

evidence to suggest that he is disabled, however, is insufficient; to prevail on appeal, Peterson must

demonstrate that the ALJ’s determination that he was not disabled is not supported by substantial

evidence.”)

The Court finds no error in the ALJ’s evaluation of the State agency medical consultants’

opinions.

2. Whether the ALJ Improperly Discounted Elliott’s Credibility

Elliott argues that the ALJ failed to properly consider Elliott’s “statements about his

limitations and how they support the opinions of his treating sources.” (Doc. No. 14, at 12.) He

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contends that the “ALJ never actually makes any finding regarding [Elliott’s] credibility except a

boilerplate paragraph.” Id. In response, the Commissioner contends that the ALJ properly evaluated

Elliott’s alleged symptoms in a manner that was consistent with SSA’s regulations and policies.

(Doc. No. 15, at 10.)

Social Security Ruling 16-3p “provides guidance about how [the Social Security

Administration] evaluate[s] statements regarding the intensity, persistence, and limiting effects of

symptoms in disability claims.” SSR 16-3p, 2017 WL 5180304, at *1 (S.S.A. Oct. 25, 2017).6 SSR

16-3p, in relevant part, provides:

If an individual’s statements about the intensity, persistence, and

limiting effects of symptoms are consistent with the objective

medical evidence and the other evidence of record, we will determine

that the individual’s symptoms are more likely to reduce his or her

capacities to perform work-related activities . . . . In contrast, if an

individual’s statements about the intensity, persistence, and limiting

effects of symptoms are inconsistent with the objective medical

evidence and the other evidence, we will determine that the

individual’s symptoms are less likely to reduce his or her capacities

to perform work-related activities . . . .

We may or may not find an individual’s symptoms and related

limitations consistent with the evidence in his or her record. We will

explain which of an individual’s symptoms we found consistent or

inconsistent with the evidence in his or her record and how our

evaluation of the individual’s symptoms led to our conclusions. We

will evaluate an individual’s symptoms considering all the evidence

in his or her record.

6 SSR 16-3p superseded SSR 96-7p. SSR 16-3p became effective on March 28, 2016, and

applies here because the ALJ’s decision was entered over two years after March 28, 2016. See Blain

v. Comm’r of Soc. Sec., No. 1:17-CV-844, 2018 WL 4178200, at *6 (W.D. Mich. Aug. 15, 2018),

report and recommendation adopted, No. 1:17-CV-844, 2018 WL 4150170 (W.D. Mich. Aug. 30,

2018) (“SSR 16-3p applies to administrative decisions made on or after March 28, 2016.” (citing

Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms in Disability Claims

(reprinted at 2017 WL 5180304, at *1, 13 n.27 (SSA Oct. 25, 2017)).

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Id. at *8.

The Sixth Circuit has characterized SSR 16-3p as merely eliminating “‘the use of the term

credibility . . . to clarify that subjective symptom evaluation is not an examination of an individual’s

character.’” Dooley v. Comm’r of Soc. Sec., 656 F. App’x 113, 119 n.1 (6th Cir. 2016) (citation and

internal quotation marks omitted); see also SSR 16-3p, 2017 WL 5180304, at *2 (“[W]e are

eliminating the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations do

not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination

of an individual’s character.”). Instead of “focusing on credibility, the new ruling focuses on

consistency.” Barncord v. Comm’r of Soc. Sec., No. 2:16-CV-389, 2017 WL 2821705, at *8 (S.D.

Ohio June 30, 2017). There is no substantive difference between SSR 16-3p and SSR 96-7p or the

analysis required of the ALJ, and therefore the case law pertaining to “credibility” assessments

remains applicable. See, e.g., Patterson v. Saul, No. 3:18-0641, 2019 WL 4237854, at *11 (M.D.

Tenn. Aug. 2, 2019), report and recommendation adopted sub nom. Patterson v. Soc. Sec. Admin.,

No. 3:18-CV-00641, 2019 WL 4237855 (M.D. Tenn. Aug. 23, 2019).

“SSR 16-3p instructs ALJs in accordance with the applicable regulations to consider all of

the evidence in the record in evaluating the intensity and persistence of symptoms after finding the

claimant has a medically determinable impairment . . . .” Coffey v. Comm’r of Soc. Sec., No.

1:16-CV-222-SKL, 2017 WL 3528952, at *8 n.4 (E.D. Tenn. Aug. 16, 2017). As to a plaintiff’s

subjective symptoms, the regulations require an ALJ to consider certain factors, including: (1) daily

activities; (2) location, duration, frequency, and intensity of pain or other symptoms; (3)

precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any

medication taken; (5) treatment, other than medication, to relieve pain or other symptoms; (6) any

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measures used to relieve pain or other symptoms; and (7) any other factors concerning functional

limitations and restrictions due to pain or other symptoms. SSR 16-3p, 2017 WL 5180304, at *7-*8.

“A claimant’s testimony may be discounted if it is contradicted by the medical reports and other

evidence in the record.” Harley v. Comm’r of Soc. Sec., 485 F. App’x 802, 804 (6th Cir. 2012).

Moreover, “[a]n ALJ may consider noncompliance with treatment as a credibility factor.” E.g.,

Robertson v. Colvin, No. 4:14-CV-35, 2015 WL 5022145, at *6 (E.D. Tenn. Aug. 24, 2015). If an

ALJ “simply erred in a factual finding,” courts “are not to second-guess,” “[a]s long as the ALJ cited

substantial, legitimate evidence to support his factual conclusions.” Ulman v. Comm’r of Soc. Sec.,

693 F.3d 709, 714 (6th Cir. 2012).

Here, the ALJ properly considered Elliott’s subjective complaints in the context of the record

as a whole. From the outset, the ALJ stated that despite his current limitations Elliott needed to

prove that he was disabled prior to the date last insured, March 31, 2013. (Tr. 18.) The ALJ

considered Elliott’s treatment record through March 2013 and concluded that “[d]espite the

claimant’s PTSD, asthma, and obesity, he has not required any repeated hospitalizations of an

extended duration nor needed frequent ER visits due to exacerbations.” (Tr. 22.) The ALJ also noted

Elliott’s “issues with poor compliance,” citing that the record showed Elliott “was prescribed

psychiatric medications as early as 2006, but notes show[ed] that as late as 2009 he was taking no

medications,” and that July 27, 2007 notes showed that Elliott “stopped taking Celexa and reported

that he was feeling fine” and “denied having any nightmares or being very anxious.” (Tr. 23, 18, 20,

1781, 1826, 1876-77, 1881.)

Additionally, the ALJ noted that Elliott earned $8,755.75 in 2008, a year when Elliott was taking

no medications. (Tr. 23, 178.)

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The ALJ also noted that despite Elliot’s ex-wife being appointed as caregiver at the time to

help keep track of his medications and appointments, January 2013 notes showed that Elliott

reported that he was looking for work and eventually wanted to return to school to complete his

degree, which seemed inconsistent with someone alleging that they were unable to work since 2005.

(Tr. 22, 1673-74.) The ALJ further cited Elliott’s use of medications and Elliott’s ex-wife’s

statements about him being able to keep track of his medications, though she double-checked him

(Tr. 22-23, 70.) The ALJ recognized that in July 2012 Elliott was without medication for four days,

but reported that his mood was better and more stable after his medication was increased. (Tr. 20,

396.) The ALJ also considered that Elliott completed a six-week residential PTSD program in March

2011 and that “he got along with peers and staff without incident,” and that “[h]is judgment and

insight were noted to be good as evidenced by entering and completing the program and recognizing

a need for treatment.” (Tr. 20, 366.)

In construing the record as a whole, the Court concludes that the ALJ evaluated Elliott’s

credibility in the context of the record as a whole and such evaluation is based upon substantial

evidence. Thus, the ALJ’s credibility determination is entitled to great deference and will not be

disturbed. Ulman, 693 F.3d at 714.

IV. Conclusion

The Court is satisfied that, at the very least, the ALJ’s determination was reasonable and fell

within the permissible “zone of choice” based upon substantial evidence within which the ALJ could

“go either way, without interference by the courts.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,

406 (6th Cir. 2009). It is thus inappropriate to disturb the ALJ’s conclusions. Elliott’s motion for

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judgment on the administrative record will be denied and the final decision of the Commissioner will

be affirmed.

The Court will file an appropriate order.

WAVERLY RENSHAW JR.

CHIEF UNITED STATES DISTRICT JUDGE

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