The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
SAMUEL A. SHEPHERD, )
Plaintiff, )
) Case No: 2:23-cv-00066
v. )
) Judge Christopher H. Steger
MARTIN O’MALLEY, )
Commissioner of Social Security )
Administration, )
Defendant. )
MEMORANDUM OPINION
I. Introduction
Plaintiff Samuel A. Shepherd seeks judicial review under § 205(g) of the Social Security
Act ("Act"), 42 U.S.C. § 405(g), from his denial of benefits by the Commissioner of the Social
Security Administration ("Commissioner") under Title II of the Act, 42 U.S.C. § 401-34. [See Doc.
1]. The parties consented to entry of final judgment by the undersigned United States Magistrate
Judge, under 28 U.S.C. § 636(c), with an appeal to the Court of Appeals for the Sixth Circuit.
[Doc. 8].
Each party has filed a brief seeking judgment in their favor pursuant to Rule 5 of the Federal
Rules of Civil Procedure Supplemental Rules for Social Security [Docs. 11, 12,1 18]. For reasons
that follow, Plaintiff's request for relief [Docs. 11, 12] will be DENIED, the Commissioner's
request for relief [Doc. 18] will be GRANTED, and judgment will be entered AFFIRMING the
Commissioner's decision.
1 Plaintiff's filings are styled as Motion for Relief Under Rules Five and Six of the Supplemental Rules for Social
Security Actions Under 42 U.S.C. § 405(g) [Doc. 11] and Brief in Support of Plaintiff's Motion for Relief Pursuant
to Rule Five and Six of the Supplemental Rules for Social Security Action Under 42 U.S.C. § 405(b) of the Federal
Rules of Civil Procedure [Doc. 12]. Filing a motion and brief in support of the motion is consistent with the practice
prior to the effective date of the new Supplemental Rules.
II. Procedural History
On July 30, 2020, Plaintiff applied for disability insurance benefits under the Act, alleging
disability as of November 1, 2016. (Tr. 19). Plaintiff's claims were denied initially as well as on
reconsideration. Id. As a result, Plaintiff requested a hearing before an administrative law judge.
Id.
Due to COVID-19, a telephonic hearing was held on June 1, 2022, that included Plaintiff’s
attorney. Id. Administrative Law Judge Benjamin Burton ("ALJ") heard testimony from Plaintiff
and a vocational expert (“VE”). (Tr. 35-59). During the hearing, Plaintiff "moved to amend the
alleged onset date of disability to January 1, 2019." (Tr. 19). The ALJ then rendered his decision
on June 14, 2022, finding that Plaintiff was not under a "disability" as defined by the Act. (Tr. 26-
27).
Following the ALJ's decision, Plaintiff requested that the Appeals Council review the
denial; but that request was denied. (Tr. 1). Exhausting his administrative remedies, Plaintiff then
filed his Complaint [Doc. 1] on June 20, 2023, seeking judicial review of the Commissioner's final
decision under § 405(g). The parties filed competing briefs and this matter is ripe for adjudication.
Findings by the ALJ
The ALJ made the following findings concerning Plaintiff's application for benefits:
1. The claimant last met the insured status requirements of the Social Security
Act on December 31, 2019.
2. The claimant did not engage in substantial gainful activity during the period
of his alleged onset date of January 1, 2019, through his date last insured of
December 31, 2019 (20 C.F.R. §§ 404.1571 et seq.).
3. Through the date last insured, the claimant has the following medically
determinable impairments: degenerative disc disease, degenerative joint
disease, cardiac arrhythmias, depression, anxiety (20 C.F.R. §§ 404.1521 et
seq.).
4. Through the date last insured, the claimant did not have an impairment or
combination of impairments that significantly limited the ability to perform
basic work-related activities for 12 consecutive months; therefore, the
claimant did not have a severe impairment or combination of impairments
(20 C.F.R. §§ 404.1521 et seq.).
5. The claimant was not under a disability, as defined in the Social Security
Act, at any time from January 1, 2019, the alleged onset date, through
December 31, 2019, the date last insured (20 C.F.R. §§ 404.1520(c)).
(Tr. 22-26).
III. Standard of Review
This case involves an application for disability insurance benefits ("DIB"). An individual
qualifies for DIB if he: (1) is insured for DIB; (2) has not reached the age of retirement; (3) has
filed an application for DIB; and (4) is disabled. 42 U.S.C. § 423(a)(1).
The determination of disability is an administrative decision. To establish a disability, a
plaintiff must show that he is unable to engage in any substantial gainful activity due to the
existence of a medically determinable physical or mental impairment that can be expected to result
in death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. § 423(d)(1)(A); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
The Commissioner employs a five-step sequential evaluation to determine whether an adult
claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The following five issues are addressed in
order: (1) if a claimant is engaging in substantial gainful activity, he is not disabled; (2) if a
claimant does not have a severe impairment, he is not disabled; (3) if the claimant's impairment
meets or equals a listed impairment, he is disabled; (4) if the claimant is capable of returning to
work he has done in the past, he is not disabled; (5) if the claimant can do other work that exists
in significant numbers in the regional or the national economy, he is not disabled. Id. If, at one
step, an ALJ makes a dispositive finding, the inquiry ends without proceeding to the next. 20
C.F.R. §§ 404.1520; 416.920; Skinner v. Sec'y of Health & Human Servs., 902 F.2d 447, 449-50
(6th Cir. 1990). Once, however, the claimant makes a prima facie case that he cannot return to his
former occupation, then the burden shifts to the Commissioner to show that there is work in the
national economy that the claimant can perform considering his age, education, and work
experience. Richardson v. Sec'y of Health and Human Servs., 735 F.2d 962, 964 (6th Cir. 1984);
Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).
The standard of judicial review is whether substantial evidence supports the
Commissioner's findings and whether the Commissioner made any legal errors in the process of
reaching the decision. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (adopting and defining
substantial evidence standard in the context of Social Security cases); Landsaw v. Sec'y of Health
and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019). Even if there is contrary evidence, the Commissioner's
findings must be affirmed if evidence exists to support the Commissioner's findings. Ross v.
Richardson, 440 F.2d 690, 691 (6th Cir. 1971). Courts may not reweigh the evidence and substitute
their judgment for that of the Commissioner because substantial evidence exists to support a
different conclusion. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citing Mullen v.
Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Sec'y, Health and Human Servs., 790 F.2d
450 n.4 (6th Cir. 1986). The substantial evidence standard allows considerable latitude to
administrative decision-makers. It presupposes a "zone of choice" within which decision-makers
can go either way without court interference. Felisky, 35 F.3d at 1035; Crisp, 790 F.2d 450 n.4.
Courts may consider any evidence in the record, regardless of whether the ALJ cited to it.
See Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). But courts may not consider
evidence that was not before the ALJ. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Courts
are also not obligated to scour the record for errors not identified by the claimant. Howington v.
Astrue, No. 2:08-cv-189, 2009 WL 2579620, at *6 (E.D. Tenn. August 18, 2009) (stating that
assignments of error not made by claimant were waived). Further, "issues which are 'adverted to
in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.'" Kennedy v. Comm'r of Soc. Sec., 87 F. App'x 464, 466 (6th Cir. 2003) (quoting United
States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).
IV. Analysis
"An impairment or combination of impairments is not severe if it does not significantly
limit your physical or mental ability to do basic work activities." 20 C.F.R. § 404.1522(a). "[A]n
impairment can be considered not severe only if it is a slight abnormality that minimally affects
work ability regardless of age, education, and experience.” Long v. Apfel, 1 F. App'x 326, 331 (6th
Cir. 2001) (quoting Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir.1988)).
Plaintiff claims the ALJ erred in finding that Plaintiff does not have a severe impairment
or combination of impairments regarding: (1) Plaintiff's physical impairments; (2) Plaintiff's
mental impairments; and (3) Plaintiff's combination of impairments. [Doc. 12 at 10]. The Court
will address each in turn.
A. Physical Impairments
Plaintiff states that he "has undergone a cervical disk fusion as well as a total right hip
replacement." [Doc. 12 at 10]. He claims that "major surgical procedures such as a neck fusion
and joint replacements are not slight abnormalities that would minimally affect [] Plaintiff's ability
to do work activities." Id. at 10-11. He states that "Plaintiff's treating orthopedic surgeon Dr. Miller
in August 2020, more than a year after [] Plaintiff's hip replacement, advised [] Plaintiff to return
to activity as tolerated." Id. at 11.
The Court notes that Plaintiff has had three major surgeries (Tr. 604-07, 616-18, 1165) and
that the severity threshold "has been construed as a de minimis hurdle." Higgs, 880 F.2d at 862.
However, "[t]he mere diagnosis of an ailment, of course, says nothing about the severity of the
condition." Apfel, 1 F. App'x at 331 (quoting Higgs, 880 F.2d at 863) (cleaned up). "When doctors'
reports contain no information regarding physical limitations or the intensity, frequency, and
duration of pain associated with a condition, this court has regularly found substantial evidence to
support a finding of no severe impairment." 1 F. App'x at 331.
In Long, the plaintiff received "a series of lumbar punctures to alleviate pressure from
excess spinal fluid" that failed to provide relief from a pseudotumor cerebri. Id. at 327-28.
Consequently, she underwent surgery to implant "a lumboperitoneal shunt in Long's lower spine
that drained excess spinal fluid into her abdomen so that she could evacuate it during urination."
Id. at 328. "Post-operative notes indicated that the surgery went well and show a recommendation
that Long increase her activity as tolerated." Id. She subsequently experienced an improvement in
various symptoms. Id. Headaches eventually returned, but her doctor was not sure they were
caused by her pseudotumor cerebri. Id. Three and a half years after the surgery, she experienced
"occasional low back pain with pain sometimes shooting in the area of the previous shunt." Id.
The Sixth Circuit upheld the ALJ's finding that Long did not have a severe impairment,
stating:
The record in this case does not contain a single statement by a treating2 physician
indicating that Long's health problems result in any specific work-impairing
limitations. On the contrary, all medical evidence shows that treatment progressed
well and that most of Long's ailments had been resolved or could be treated with
prescription and over-the-counter medication.
2 "The only medical evidence suggesting Long has any impairment at all comes from the non-examining state
agency physicians, who specifically found that she could perform medium-level work." Long, 1 F. App'x at 332.
Id. at 332.
Here, Plaintiff points to no statements by any physician indicating that his health problems
resulted in any specific work-impairing limitations. Further, the initial non-examining state agency
reviewing physician, Sara Bomar, M.D., found insufficient evidence in the record to show
disability. (Tr. 66). She opined that Plaintiff had no severe impairments or combination of
impairments. Id. On reconsideration, another non-examining state agency reviewing physician,
Dr. Karla Montague-Brown, M.D., found Dr. Bomar's assessment of insufficient evidence to show
disability to be persuasive. She also opined that Plaintiff had no severe impairments or combination
of impairments. Id.
As in Long, the medical evidence shows that treatment progressed well, and Plaintiff's
ailments have largely resolved or were treated with medication. For instance, Plaintiff had cervical
spine surgery in November 2015. (Tr. 1172). In March 2018, Plaintiff reported "he was doing
fairly well until late January when he fell" due to tripping in a hole. (Tr. 497). Plaintiff's medication
review showed that his only pain medication was taking Aleve as needed. (Tr. 498). While he had
some pain from the fall, his doctor noted, "No medications were requested or written for him
today." (Tr. 499). Plaintiff did have some neck pain in November 2019. (Tr. 1042-43). Since he
was having GI issues with the Aleve, his doctor switched him to aspirin. Id. Four days later, x-rays
showed "posterior spurring at C5-6 which has developed in the interval with an otherwise
unremarkable exam." (Tr. 1040). At his next medical appointment ten months later, aspirin was
still the only pain reliever listed in Plaintiff's medications. (Tr. 1036-37).
In October 2017, Plaintiff suffered a "moderately displaced femoral neck fracture after [a]
fall." (Tr. 618). At the advice of Orthopedic Surgeon Bruce Miller, M.D., Plaintiff opted for a
closed reduction surgery and pinning in hopes of avoiding total hip arthroplasty. Id. At a follow-
up visit in April 2018, Dr. Miller noted, "[Plaintiff] reports he is back to normal. He reports he is
walking without assistive devices, placing full weight on the right lower extremity. His right hip
and leg feel fine." (Tr. 609). Dr. Miller's physical exam noted "a nice reciprocal gait. He indeed is
placing full weight on the right lower extremity, which is neurovascularly intact. He has excellent
hip range of motion, flexion, extension, internal, and external rotation, pain free." Id.
Unfortunately, by March 2019, Plaintiff developed significant hip arthritis. (Tr. 608). Dr. Miller
noted, "[Plaintiff] is quite limited in his normal activities of daily living secondary to this
posttraumatic arthritis of his right hip and he would like to go ahead and proceed with elective
total hip arthroplasty." Id.
In April 2019, Plaintiff underwent hardware removal and right hip total arthroplasty. (Tr.
604). By August 2019, Dr. Miller's physical exam showed a "nice reciprocal gait. He still has a
little bit of core weakness and a very slight Trendelenburg gait, mainly noticeable with single leg
balance, but he has wonderful hip motion. Good hip stability. Neurologically intact." (Tr. 597).
Dr. Miller also stated, "X-rays, AP pelvis and frog-leg lateral hip shows well placed total hip
arthroplasty. No evidence of component loosening, malposition, or polyethylene wear." Id. Dr.
Miller gave Plaintiff some home exercises for balance and core hip muscle strength and setup
Plaintiff for a yearly checkup. Id. In August 2020, Dr. Miller noted Plaintiff had "[n]o complaints"
except a little soreness "over the lateral aspect of the right hip." (Tr. 596). In his physical exam,
Dr. Miller stated, "Physical examination of the right hip looks great. Well-healed surgical incision.
No cellulitis. No drainage. No discharge. He is a little tender to palpation right at the tip of the
greater trochanter along his hip abductor. Normal hip motion. Normal reciprocal gait, walking
unassisted." Id. Dr. Miller also noted, "X-rays, AP pelvis and frog-leg lateral hip shows well placed
total hip arthroplasty. No evidence of component loosening, malposition, or polyethylene wear.
Good bony ingrowth of both femoral and acetabular components." Id. Dr. Miller again gave
Plaintiff home exercises, set a one-year follow-up, and "[e]ncouraged him to resume activities as
tolerated." Id.
Based on Sixth Circuit caselaw and the medical evidence of record, the Court finds
Plaintiff's argument regarding his physical impairments to be unconvincing. As in Long, the Court
finds that the ALJ's determination of non-severity should be upheld due to the absence of opined
limitations from a treating3 source and evidence in the record showing improvement after surgery
to the point that treatment by no more than medication was utilized. Therefore, the ALJ's decision
of non-severity regarding Plaintiff's physical impairments is supported by substantial evidence.
B. Mental Impairments
Plaintiff claims "that it was error for the ALJ to not consider depression and anxiety as
severe impairments as well." [Doc. 12 at 11-12]. Plaintiff points to "an exam from a prior file from
2014 that opines that [] Plaintiff's ability to maintain concentration and persistence was moderately
limited and his ability to adjust [to] work activity was mildly to moderately limited." Id. at 11. He
also points to treatment from Dwayne Steffey, A.P.N., F.N.P., M.S.N.,4 that "consistently noted
that [] Plaintiff had depression and anxiety." Id.
Plaintiff only spends three sentences on this argument. The Court finds that it is
functionally waived as "issues which are 'adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.'" Kennedy v. Comm'r of Soc. Sec.,
87 F. App'x 464, 466 (6th Cir. 2003) (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.
1996)).
3 And in this case, no such opinion from any physician.
4 Nurse Practitioner Steffey will be referred to as N.P. Steffey.
However, the Court notes three things. First, the 2014 exam from a prior file holds next to
no persuasive value because Plaintiff's claim only relates to 2019 (see Tr. 19, 22) and Plaintiff
points to no other medical records mentioning depression and/or anxiety in 2015, 2016, or 2017.
[Doc. 12 at 11].
Second, state agency reviewing psychologist Fawz Schoup, Ph.D., opined that evidence
was insufficient to substantiate the presence of any mental disorders or evaluate Plaintiff's mental
limitations. (Tr. 66-67). At the reconsideration level, state agency reviewing psychologist Norma
Calway-Fagen, Ph.D., found Dr. Schoup's assessment to be persuasive. (Tr. 74). She opined that
"[t]he claim remains insufficient to evaluate for mental [limitations]." Id.
Third, Plaintiff's reference to N.P. Steffey's treatment notes is incomplete. Plaintiff saw
N.P. Steffey six times in 2018 and 2019 and only half of these visits mention depression and/or
anxiety.5 (See Tr. 1042-43, 1049-52, 1066-67, 1073-74, 1080-81). Additionally, though Plaintiff
was referred to and had visits with other subspecialties during this time (Gastroenterology in
December 2018, Tr. 1058-60; Cardiology in May 2019, Tr. 1045-46; Radiology in November
2019, Tr. 1040), there are no medical records reflecting referrals and/or visits to any mental health
providers. (See Tr. 495-1314). Finally, Plaintiff's depression and anxiety did appear to increase
after his date last insured as Plaintiff had five visits with N.P. Steffey from September 2020 to
May 2021, and all of them mention anxiety and/or depression. (See Tr. 1021-22, 1030-37).
However, treatment notes and testimony from the hearing reflect that this was due to Plaintiff
having to care for his wife who was diagnosed with end-stage liver failure in February 2020. (Tr.
40, 47, 1021-22, 1030-37). Therefore, these five visits are not strongly probative of Plaintiff's
depression and anxiety in 2019.
5 Visits from March 2018, April 2018, and April 2019 mention depression and/or anxiety. Visits from August 2018,
February 2019, and November 2019 do not.
Therefore, even if Plaintiff has not waived his argument regarding the severity of his mental
impairments, his argument is not persuasive. Plaintiff's mental impairments of anxiety and
depression were slight abnormalities that minimally affected his work ability in 2019. Therefore,
the ALJ's finding regarding non-severity of Plaintiff's mental impairments is supported by
substantial evidence.
C. Impairments in Combination
Plaintiff states, "Even assuming that these impairments were not severe in isolation, which
[] Plaintiff strongly disputes, the ALJ was also required to consider whether the impairments in
combination would constitute a severe impairment." [Doc. 12 at 12]. Plaintiff only spends one
other sentence on this line of argumentation. Therefore, Plaintiff has functionally waived his issue
as well.
However, the Court notes that in the ALJ's findings of fact and conclusions of law, the ALJ
wrote:
4. Through the date last insured, the claimant did not have an impairment or
combination of impairments that significantly limited the ability to perform basic
work-related activities for 12 consecutive months; therefore, the claimant did not
have a severe impairment or combination of impairments (20 C.F.R § 404.1521 et
seq.).
(Tr. 22 (emphasis added)).
Next, the ALJ gave the definition of basic work activities and listed many examples of such
from SSR 85-28, then stated:
In reaching the conclusion that the claimant did not have an impairment or
combination of impairments that significantly limited his ability to perform basic
work activities, the undersigned has considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of 20 C.F.R. §
404.1529 and SSR 16-3p.
(Tr. 22-23 (emphasis added)).
The ALJ then spent 13 paragraphs over the next four pages carefully and thoroughly
discussing and analyzing the evidence of Plaintiff's physical and mental impairments. (Tr. 23-26).
The ALJ then stated:
The conclusion that the claimant does not have an impairment or combination of
impairments that significantly limits his or her ability to perform basic work
activities is consistent with the objective medical evidence and other evidence.
Based on the foregoing, the claimant's physical and mental impairments, considered
singly and in combination, do not significantly limit the claimant's ability to
perform basic work activities. Thus, the claimant does not have a severe impairment
or combination of impairments.
(Tr. 26 (emphasis added)).
Therefore, even if Plaintiff has not waived the issue of the severity of his
impairments considered in combination, his argument is wholly unpersuasive. The ALJ
gave a detailed and comprehensive discussion of Plaintiff's impairments and, contrary to
Plaintiff's claim, clearly considered those impairments singly and in combination.
Therefore, the ALJ's determination of non-severity for Plaintiff's combination of
impairments is supported by substantial evidence.
V. Conclusion
Having reviewed the administrative record and the parties' briefs, Plaintiff's request for
relief [Docs. 11, 12] will be DENIED, the Commissioner's request for relief [Doc. 18] will be
GRANTED, and the decision of the ALJ is AFFIRMED. Judgment will be entered in favor
of the Commissioner.
SO ORDERED.
/s/ Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE