The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LISA HAMILTON, )
)
Plaintiff, )
) NO. 3:18-cv-1309
v. ) JUDGE RICHARDSON
)
ANDREW W. SAUL, Commissioner of )
Social Security Administration, )
)
Defendant. )
ORDER AND MEMORANDUM OPINION
Pending before the Court are a Report and Recommendation (“R&R”) of the Magistrate
Judge (Docket No. 21), Objections filed by Plaintiff (Docket No. 22), and a response to the
Objections filed by Defendant. (Doc. No. 23).
When a magistrate judge issues a report and recommendation regarding a dispositive
pretrial matter, the district court must review de novo any portion of the report and
recommendation to which a proper objection is made. Fed. R. Civ. P. 72(b)(3). The district judge
may accept, reject, or modify the recommended disposition, review further evidence, or return the
matter to the magistrate judge with instructions. Id.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(3), the Court has reviewed
de novo the R&R, the Objections, the response, and the file. For the reasons set forth herein, the
Objections of the Plaintiff are overruled, and the R&R is adopted and approved.
Accordingly, Plaintiff’s Motion for Judgment upon the Administrative Record (Doc. No.
17) is DENIED, and the decision of the Social Security Administration is AFFIRMED.
BACKGROUND
The Court need not repeat the entire factual and procedural background, as it is aptly set
forth in the R&R. In summary, Plaintiff filed a Title II application for disability benefits on May
9, 2016, alleging disability beginning August 15, 2014. She listed the physical or mental conditions
that limited her ability to work as follows: “Bulging Disc in my Lower Back. Can’t Stand on flat
feet, Legs, Ankles and Knees. High and Low High Blood Pressure. Hot Flashes in days and Hot
flashes at night. Can’t Sleep good. Headaches & U.T.” (Doc. No. 15 at 166).1 Plaintiff appeals
from a decision of an Administrative Law Judge (“ALJ”) that denied her claim for disability
benefits.
Plaintiff has filed two objections to the ALJ’s decision: (1) the ALJ’s evaluation of the
opinion evidence from Plaintiff’s treating physician, Dr. McKinney, is not substantially supported
by the record; and (1) the ALJ’s evaluation of Plaintiff’s subjective complaints are not supported
by substantial evidence. (Doc. No. 22). In accordance with Fed. R. Civ. P. 72(b)(3), the Court will
review de novo these two specific objections and the portions of the R&R and ALJ’s decision to
which those objections relate.
ANALYSIS
The critical questions before the district court in reviewing a decision by an ALJ is whether
the ALJ’s determination was supported by substantial evidence and whether the ALJ applied the
correct legal standards. Shelton v. Saul, No. 2:18-cv-00093, 2020 WL 1284628, at *2 (M.D. Tenn.
Mar. 18, 2020) (citing 42 U.S.C. § 405(g)). The court conducts its review under a “highly
1 The Administrative Record (“AR”) is filed at Docket No. 15. The page numbers cited herein are
the page numbers placed at the bottom of each page by the Court’s docketing system (“Page ___
of 448”).
2
deferential,” substantial-evidence standard. Jones v. Berryhill, 392 F. Supp. 3d 831, 838 (M.D.
Tenn. 2019). The phrase “substantial evidence” is a “term of art” used throughout administrative
law to describe how courts are to review agency factfinding. Biestek v. Berryhill, --- U.S. ---, 139
S. Ct. 1148, 1154 (2019), cited in Jones at 838.
Under the “substantial evidence” standard, a court looks to an existing administrative
record and asks whether it contains “sufficient evidence” to support the agency’s factual
determinations. Biestek, 139 S. Ct. at 1154. And, whatever the meaning of “substantial” in other
contexts, the threshold for such evidentiary sufficiency is not high. Id. Substantial evidence is
“more than a mere scintilla” and means only such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Id., cited in Shelton, 2020 WL 1284628, at *2. The
standard, by all accounts, amounts to “less than a preponderance of the evidence,” and is met even
if the record could reasonably support the opposite conclusion. Brown v. Comm’r of Soc. Sec., ---
F. App’x ---, 2020 WL 2768857, at *3 (6th Cir. 2020).
A. Objection 1 – ALJ’s Treatment of Dr. McKinney’s Opinion
An ALJ must give the opinion of a “treating physician” (one who has an ongoing treatment
relationship with the claimant) controlling weight if it is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the case record. Brown, 2020 WL 2768857, at *3. Where the treating physician’s
opinion is contrary to substantial evidence in the record, the ALJ determines how to weigh that
opinion by considering a number of factors, including the length of the treatment relationship, 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 any specialization of the
3
treating physician. Id.2 The ALJ must give good reasons regarding its weighing of the treating
physician’s opinion; that is, reasons supported by the record and “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.” Id. (quoting Blakeley v. Comm’r of Soc. Sec., 581 F.3d
399, 406-07 (6th Cir. 2009)).
Here, the ALJ stated that “significant weight is accorded to the opinion of the claimant’s
primary care provider, Dr. McKinney, who opined that Plaintiff could lift and carry up to twenty
pounds occasionally; sit a total of six hours in a workday; stand and walk a total of four hours in
an eight-hour workday; frequently reach, handle, finger, feel, push and pull; frequently operate
foot controls; occasionally climb ramps and stairs but never ladders, ropes or scaffolds;
occasionally balance and never stoop, kneel, crouch and crawl; and should avoid unprotected
heights, moving mechanical parts, operating a motor vehicle, temperature extremes, pulmonary
irritants, humidity and wetness, temperature extremes and vibration.” (Doc. No. 15 at 25).3
While according “the greatest weight to these opinions,” the ALJ found that Dr.
McKinney’s opinions regarding Plaintiff’s ability to perform manipulative tasks was not supported
by the evidence because “there have been no abnormal findings related to the claimants’ upper or
lower extremities that would support these opinions,” and, by Plaintiff’s own statements, she “has
no difficulty in doing tasks that require the use of her hands.” (Id.) Thus, he did give reasons for
according lesser weight to these opinions. Moreover, in his opinion, the ALJ cited to medical
2 See also 20 C.F.R. § 416.927 for guidance on evaluating opinion evidence for claims filed, as
here, before March 27, 2017.
3 Dr. McKinney’s “Medical Source Statement of Ability To Do Work-Related Activities
(Physical)” is found at Doc. No. 15, pages 411-416.
4
records from University Hospital reflecting that the physician found 5/5 strength in all Plaintiff’s
extremities (Doc. No. 15 at 355, 360-62); records from Dr. Richie reflecting that he found normal
strength and sensation in Plaintiff’s lower and upper extremities (Id. at 392-93); MRI results from
August 2015 reflecting “minimal” stenosis and “minimal to mild” stenosis. (Id. at 317); and
records from Dr. McKinney indicating that Plaintiff moved all four extremities well (Id. at 422
and 427). To the extent the ALJ gave lesser weight to Dr. McKinney’s opinion on this issue, he
sufficiently explained his reasons.4
The ALJ accepted the findings of Dr. McKinney that Plaintiff could sit a total of six hours
in a workday and could stand and walk a total of four hours in an eight-hour workday, but he
accorded little weight to Dr. McKinney’s opinion that Plaintiff could sit only two hours at one
time, stand only two hours at one time, and walk only thirty minutes at one time, finding that there
“are no significant abnormal examination findings that support these limitations.” (Id.) For
example, in explaining the particular medical or clinical findings that supported his assessment or
limitations on Sitting/Standing/Walking, Dr. McKinney stated that Plaintiff has osteoarthritis of
the knee and back, “mild to moderate.” (Doc. No. 15 at 412).
Plaintiff specifically objects to the fact that neither the ALJ nor Defendant has
acknowledged Plaintiff’s testimony that she had been a patient of Dr. McKinney’s since the age
4 The Court notes that although the ALJ states that Dr. McKinney’s opinion regarding Plaintiff’s
ability to perform manipulative tasks is not supported by the evidence, he nonetheless includes, as
part of his findings concerning Plaintiff’s residual functional capacity, Dr. McKinney’s
recommendation that Plaintiff can “frequently” reach, handle, finger, feel and push/pull in his
finding concerning Plaintiff’s residual functional capacity. (Doc. No. 15 at 21).
5
of 16. (Doc. No. 22 at 2).5 She cites to Defendant’s response to her Motion for Judgment Upon the
Administrative Record, where Defendant argues that Dr. McKinney had seen Plaintiff on only a
“few occasions,” but that argument comes from Defendant’s brief, not from the findings of the
ALJ. The ALJ, as Defendant notes (Doc. No. 19 at 7), analyzed Dr. McKinney’s opinion in a
manner consistent with the evaluation of a treating physician opinion. Indeed, the ALJ stated that
he accorded “the greatest weight” to the opinions of Dr. McKinney, except as to the two opinions
noted above (manipulative tasks and time sitting, standing and walking at one time), which he
found to be unsupported by the medical evidence in the record. There is no indication that the ALJ
“proceeded to discount the treating physician opinion” as Plaintiff asserts, because of the small
(according to Defendant) number of times Plaintiff had seen this physician.
Plaintiff asserts that her “central contention” is that Dr. McKinney is a “treating physician”
whose opinion is entitled to controlling weight. (Doc. No. 22 at 2). The ALJ did not dispute that
Dr. McKinney was a “treating physician” or proceed as if Dr. McKinney was not a “treating
physician.” And the ALJ gave “the greatest weight” to Dr. McKinney’s opinions that were
supported by substantial evidence in the record.6 He explained his reasons for giving lesser weight
to these two opinions of Dr. McKinney. Plaintiff’s objection as to this issue is overruled.
5 As noted above, where the treating physician’s opinion is contrary to substantial evidence in the
record, the length of the treatment relationship is one factor for the ALJ to consider in determining
the weight to give the treating physician’s opinion. Brown, 2020 WL 2768857, at *3.
6 The federal regulation applicable to Plaintiff’s case states that the Social Security Administration
will give controlling weight to a treating physician’s medical opinion on the nature and severity of
a claimant’s impairments if it finds that opinion “is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with other substantial evidence” in the
claimant’s case record. 20 C.F.R. § 416.927(c)(2).
6
B. Objection 2 – ALJ’s Treatment of Plaintiff’s Subjective Complaints
The ALJ stated that “the functional restrictions alleged by the claimant have been found to
be disproportionate to the clinical findings.” (Doc. No. 15 at 25). He stated that Plaintiff’s
“subjective complaints have been accepted, as far as they were supported by the objective evidence
and record as a whole.” (Id. at 26). He reported that he had “considered all the symptoms and the
extent to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence.” (Id. at 21). He cited the two-step process required in
considering a claimant’s symptoms: (1) determining whether there is an underlying medically
determinable physical or mental impairment that could reasonably be expected to produce the
claimant’s pain or other symptoms; and (2) evaluating the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to which they limit the claimant’s
functional limitations. (Id.) He acknowledged that whenever statements about the intensity,
persistence, and functionally limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, he must consider other evidence in the record to determine whether
Plaintiff’s symptoms limit her ability to do work-related activities. (Id.)
Although the ALJ found that Plaintiff’s underlying medically determinable physical
impairment could reasonably be expected to cause the alleged symptoms, he determined that
Plaintiff’s statements about the intensity, persistence and limiting effects of these symptoms were
not entirely consistent with the medical and other evidence in the record. (Doc. No. 15 at 22).
Plaintiff specifically contends that neither the ALJ nor the Magistrate Judge has cited which
medical evidence in the record was inconsistent with Plaintiff’s subjective complaints. But see
R&R at 11-15 and Doc. No. 15 at 22-24.
7
The ALJ found that, while Plaintiff was a sincere witness, the objective medical evidence
failed to support the extreme limitations she alleged. (Doc. No. 15 at 24). He cited to medical
records that reflected Plaintiff’s reporting of her pain to be no more than moderate; range of motion
testing that has been normal throughout the record; reports of normal gait throughout her record;
to an MRI of her lumbar spine that showed “minimal to mild” facet arthropathy with no significant
stenosis; and to Plaintiff’s minimal treatment, which was almost exclusively general refills for pain
medications. (Id).
In addition, the ALJ cited to an October 17, 2014 medical record from University Hospital,
where Plaintiff presented with shortness of breath, blood pressure problems, and weakness with
hot flashes. (Doc. No. 15 at 22). Those records are found at Doc. No. 15, pp. 358-378. At that time,
Plaintiff reported no associated back pain, and an examination revealed motor strength of 5/5 for
all Plaintiff’s extremities, normal gait, full range of motion of Plaintiff’s neck, and normal range
of motion for her back. (Id. at 360-62). These records are not consistent with Plaintiff’s
descriptions of the nature and severity of her symptoms.
The ALJ also cited to a November 3, 2014 medical record from University Hospital
concerning Plaintiff’s visit to the emergency room for a migraine headache. (Doc. No. 15 at 22).
Those records reveal that she again had normal range of motion and normal strength. As for her
back, the medical notes state “No spinal tenderness. No costovertebral tenderness. Full range of
motion.” (Id. at 355). The records also reflect motor strength of 5/5 in all extremities. (Id.) This
record does not support the severity of Plaintiff’s symptoms as reflected in her testimony and
subjective complaints.
The ALJ also cited to January 2015 medical records from Family Medical that indicate that
Plaintiff presented with lumbar region pain which she described as moderate in severity and
8
radiating into the right leg. (Doc. No. 15 at 382). Physical examination revealed that her cervical
range of motion was within normal limits and there was no spinal tenderness or misalignment, but
she had a decrease in range of motion for the lumbar spine, and there was mild paraspinal muscle
spasm and a positive straight leg raise. (Id. at 384).
Next, the ALJ noted an April 18, 2015 medical record in which Plaintiff’s range of motion
in the cervical and lumbar spine was normal and full and her gait was steady. (Doc. No. 15 at 23
and 326). An August 24, 2015 MRI of Plaintiff’s lumbar spine reflected L4-L5 facet arthropathy
causing minimal left foraminal stenosis and a L5-S1 posterior disc bulge and facet arthropathy
producing minimal to mild bilateral foraminal stenosis. (Id. at 317).
On September 29, 2015, Plaintiff was evaluated by Dr. Lucas Richie for low back pain.
His records reflect that Plaintiff reported a “constant aching and throbbing pain most aggravated
by prolonged standing, prolonged sitting, walking, forward bending, lifting and sleeping.” (Doc.
No. 15 at 390). Plaintiff also complained of knee pain, ankle pain, and foot pain but denied
numbness, tingling or weakness. (Id.) Physical examination on this visit revealed full and painless
range of motion of her cervical spine and full range of motion with normal strength and sensation
in her upper and lower extremities. (Id. at 392-93).
Dr. McKinney’s August 2016 report reflects that, although she reported low back pain with
radiation to the bilateral lower extremities, Plaintiff moved her extremities well and had a normal
gait with no sensory deficits. (Doc. No. 15 at 405). Dr. McKinney’s assessment on that date was
osteoarthrosis of the knee and osteoarthritis of the spine and chronic pain syndrome. (Id). In his
next report, in April 2017, Dr. McKinney found that Plaintiff was doing well and taking tramadol
for pain with good results. (Id. at 420). His physical exam showed that Plaintiff moved all four
extremities well and had a normal gait. (Id. at 422). His assessment of osteoarthrosis and
9
osteoarthritis remained the same. (/d.) Finally, Dr. McKinney’s September 29, 2017 records note
again that Plaintiff is taking tramadol with good relief (id. at 445), moved her extremities well, and
had a normal gait. Ud. at 447). Dr. McKinney noted that Plaintiff still experienced mild pain but
was able to get relief from medicines. (/d.)
Thus, it is not true that the ALJ failed to identify which medical evidence in the record was
inconsistent with Plaintiff's subjective complaints. He accepted Plaintiff's subjective complaints
as far as they were supported by the objective evidence and the record as a whole, and he identified
those portions of the record that were inconsistent with Plaintiff's complaints and discounted them
accordingly. Therefore, Plaintiff's second objection is also overruled.
CONCLUSION
Plaintiff's Objections are overruled, and the R&R of the Magistrate Judge is adopted and
approved. Accordingly, Plaintiff's Motion for Judgment upon the Administrative Record is
DENIED, the decision of the Commissioner of the Social Security Administration is
AFFIRMED, and this action is DISMISSED. The Clerk is directed to close this file. This Order
shall constitute the final judgment for purposes of Fed. R. Civ. P. 58.
IT IS SO ORDERED.
Chi Richeardscn
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
10