Appendix — Templeton v. Astrue (No. 06-1493)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 06-5545

[Filed February 8, 2007]

TIMOTHY C. TEMPLETON,

Plaintiff-Appellant,

Vv.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant-Appellee.

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On Appeal from the United States District Court

for the Eastern District of Tennessee

Before: GUY, SUHRHEINRICH, and GRIFFIN, Circuit

Judges.

PER CURIAM. Plaintiff Timothy C. Templeton appeals

from the district court’s order affirming the denial of his

application for social security disability benefits. First,

seeking reversal, Templeton contends that there was not

substantial evidence to support the ALJ’s conclusion that he

retained the capacity to perform unskilled light work that

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allowed for frequent postural changes. Second, Templeton

argues that the district court erred by refusing to remand his

claim for consideration of new evidence concerning his

residual functional capacity. For the reasons that follow, we

affirm in all respects.

I.

Templeton applied for disability insurance benefits

alleging that his disability began on May 30, 2003, after he

injured his back at work. Templeton, who completed high

school, had past relevant work experience as a shipper and a

crane operator. His prior relevant work required heavy

exertion, which it is undisputed he could no longer perform.

Plaintiff maintained that he was disabled due to a herniated

disc at L5-S1 and constant pain in his lower back radiating

down both legs. His application was denied initially and on

reconsideration, and a hearing was held before an ALJ on

February 3, 2005.

In a written decision issued April 11, 2005, the ALJ found

that plaintiff had demonstrated a severe impairment that was

expected to last more than 12 months which would preclude

him from performing his past relevant work. The ALJ also

concluded, however, that Templeton retained the capacity to

perform simple, unskilled, light work that allowed for

frequent postural changes. Relying on the vocational expert’s

testimony that a significant number of such jobs existed in the

national economy, the ALJ concluded that plaintiff was not

disabled under the Social Security Act. Plaintiff submitted

additional evidence with his request for review by the Appeals

Council. The Appeals Council denied review on June 30,

2005, and the ALJ’s decision became the final agency action.

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Plaintiff brought this action seeking judicial review of the

denial of benefits, and cross-motions for summary judgment

were filed. The district court granted summary judgment to

the Commissioner on March 9, 2006, finding that substantial

evidence supported the ALJ’s decision and denying the

request for remand under sentence six of 42 U.S.C. § 405(g).

Plaintiff filed a motion to alter or amend judgment, which was

also denied, and this appeal followed.

Il.

A five-step sequential process is used to determine

whether a claimant is disabled within the meaning of the

Social Security Act. See 20 C.F.R. § 404.1520; Warner v.

Comm’r of Soc. Sec, 375 F.3d 387, 390 (6" Cir. 2004);

Foster v. Halter, 279 F.3d 348, 353 (6" Cir. 2001); Heston

v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6" Cir. 2001).!

' The claimant must first demonstrate that he is not engaged in any

“substantial gainful activity” at the time he seeks disability benefits,

and then that he suffers from a “severe impairment” that

“significantly limits... physical or mental ability to do basic work

activities.” 20 C.F.R. § 404.1520(b) and (c) and § 416.920(c).

Third, if the claimant’s severe impairment is expected to last for at

least 12 months and the impairment “meets or equals a listed

impairment,” he is presumed to be disabled. 20 C.F.R.

§ 404. 1520(d) and § 416.920(d). Fourth, if the impairment does not

meet or equal a listed impairment and does not prevent the claimant

from doing past relevant work, he is not disabled. 20 C.F.R.

§ 404.1520(e). If he cannot perform past relevant work, other

factors are considered at the fifth and final step including age,

education, work experience, and residual functional capacity, to

determine whether the claimant can make an adjustment to other

work. 20 C.F.R. § 404. 1520(f) and § 404.1545. If he can, he is not

disabled under the Social Security Act.

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The claimant bears the burden of proof on steps one through

four, and then the burden shifts to the Commissioner to

establish that there are a significant number of jobs in the

national economy that the claimant can perform. Warner, 375

F.3d at 390. In this case, the ALJ acting for the

Commissioner found in plaintiff's favor on each of the first

four steps, but concluded at the fifth and final step that there

was work Templeton could perform and denied his application

for benefits.

“This court must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to

apply the correct legal standards or has made findings of fact

unsupported by substantial evidence in the record.” Walters

v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6" Cir. 1997);

see also 42 U.S.C. § 405(g). Substantial evidence is “‘such

relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Richardson v. Perales,

402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842

(1971)(citation omitted). In reviewing the Commissioner’s

conclusions, we may not resolve conflicts in the evidence or

decide questions of credibility. Gaffney v. Bowen, 825 F.2d

98, 100 (6" Cir. 1987). Even if substantial evidence would

have supported the opposite conclusion, the Commissioner’s

findings must be affirmed if supported by substantial

evidence. Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997).

A. Evidence

Plaintiff was diagnosed and treated by neurosurgeon John

Raff, M.D., for a herniated disc at L5-S1 and pain in the low

back and legs between May 2003 and January 2004. Surgery

was rejected as a treatment option given the risk of a poor

outcome due in part to the fact he weighed over 300 pounds.

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Plaintiff received physical therapy and underwent several

spinal injections, but neither resolved his complaints. The

doctor who administered the injections, Timothy Smyth,

M.D., of Pain Medicine Associates, diagnosed plaintiff as

having lumbar spondylosis without myelopathy, mild lumbar

degenerative disc disease, and mild lumbar herniated nucleus

pulposus. Plaintiff's primary care doctors, first Dr. John IIe

and later Dr. Mark Dalle-Ave, also treated plaintiff for

hypertension, low back pain, neuropathy, depression, anxiety,

stress, and reflux disease.

Dr. Raff referred plaintiff to occupational therapist Jeff

Snodgrass for a functional capacity evaluation, which was

conducted in December 2003. After examining plaintiff, the

therapist concluded that plaintiff was able to stand, walk,

bend, and stoop occasionally, and needed to be able to

alternate bet ween positions as his symptoms required. Plaintiff

could also climb stairs occasionally — but not ladders — and

could not crouch, squat, twist, or perform low level work.

Snodgrass found that plaintiff was limited to sedentary

physical demands for lifting (up to 10 pounds occasionally);

light physical demands for carrying, pushing, and pulling (up

to 20 pounds occasionally); and should initially return to work

for only three to four hours per day. This evaluation

concluded that plaintiff was capable of sedentary to light

work.

In a letter dated January 13, 2004, Dr. Raff opined that

plaintiff had reached “maximum medical improvement and

[was] not likely to become appreciably better or worse in the

foreseeable future.” With respect to his functional capacity,

Dr. Raff concluded as follows:

Based on his history and physical examination,

imaging, and functional capacities evaluation, [ would

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consider Mr. Templeton in a sedentary/light capacity

of work which would allow freedom in the work space

to sit or stand at will, move around the work space,

and not be mandated to maintain any static postures

longer than he is comfortable. It is likely he will

require to be in/out [of] a seated or walking position

about every 30 minutes. His work should not require

lifting greater than 20 Ibs. occasionally, 10 Ibs.

frequently, or 5 Ibs. continuously, and lifting should

be restricted to between the hips and shoulders. He

should not do any forward extended lifting, i.e., non-

ergonomic positions.

Dr. Raff released plaintiff from his care at that time and

recommended that he continue pain management through his

primary care doctor or a pain management specialist. Dr.

Raff did not examine or treat plaintiff after that, and was on

active military duty in Afghanistan between May 2004 and

May 2005.

The ALJ chose to credit Dr. Raff’s opinion concerning the

extent of plaintiff's physical limitations over the conclusions

of two non-examining agency reviewers who concluded

plaintiff's exertional capacity was limited to sedentary work.

The ALJ also discounted the opinion of Norman Hankins,

Ed.D., a psychologist who did a vocational evaluation of

plaintiff, that there were no jobs that the plaintiff could

perform on a full-time basis. Although Hankins conducted

tests of the plaintiff's intellectual capacities, his evaluation of

plaintiff's physical limitations was based on the limitations

identified by Dr. Raff.

Plaintiff testified during the administrative hearing in

February 2004 that he experienced pain almost all of the time,

that the pain would radiate into one or both legs, and that he

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usually could not sit or stand for more than 15 to 20 minutes.

He explained that when the pain is worse, which was one to

three days a week, he could hardly get out of bed. At the time

of the hearing, plaintiff was taking Neurontin and Lortab for

pain. Plaintiff testified that he took 10 mg. of Lortab three

times per day, and that it sometimes made him drowsy or

“sort of sleepy.”

The ALJ posed several hypothetical questions to

vocational expert Cathy Sanders. Specifically, Sanders was

asked to assume that an individual with plaintiffs age,

education, and work experience had the capacity to do simple,

unskilled light work activity that involved lifting up to 20

pounds occasionally and 10 pounds frequently, and that

allowed for frequent postural changes. Sanders testified that

a person with those vocational characteristics and functional

Capacities could work as a gate guard, parking lot attendant,

information clerk, or ticket clerk. She added that 1,100 such

jobs existed in the regional economy and 30,000 in the

national economy.

When the ALJ asked Sanders to include as an additional

limitation that pain would frequently interfere with the

individual’s ability to concentrate and persist at work tasks,

she indicated that this limitation would eliminate the jobs she

had identified. On cross-examination, Sanders agreed that the

side effects of pain medication could also interfere with the

ability to perform those jobs. Finally, when asked about

sedentary work, Sanders responded that there were no

unskilled sedentary jobs that would allow for frequent postural

changes.

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B. Analysis

The ALJ credited Dr. Raff's assessment of the plaintiff's

physical limitations, discounted plaintiff's testimony

concerning the extent of his pain and the side effects of his

medication, and concluded that plaintiff could do unskilled

light work if it allowed for frequent postural changes and that

a significant number of such jobs existed in the national

economy. The regulations define light work as involving

lifting no more than 20 pounds at a time with frequent lifting

or carrying of up to 10 pounds, while sedentary work

involves lifting no more than 10 pounds at a time and

occasionally lifting and carrying of smal! objects. A job will

also be light work if it requires a good deal of walking or

standing, or involves sitting most of the time with some

pushing and pulling. 20 C.F.R. § 404.1567(b). Plaintiff

contends on appeal that substantial evidence does not support

the ALJ’s determination that he was capable of performing

light work that allowed for frequent postural changes.

First, plaintiff argues that the ALJ improperly disregarded

the vocational expert’s testimony that even those jobs would

be eliminated if pain frequently interfered with his ability to

concentrate and persist at work tasks or if the side effects of

medication interfered with his ability to do those jobs. The

ALJ did not reject the vocational expert’s testimony, but

simply found that neither plaintiff's pain nor the side effects

of medication were of such severity that it would interfere

with his ability to perform the identified jobs. We must affirm

this conclusion unless it is not supported by or consistent with

the evidence. Cline v. Comm’r of Soc. Sec, 96 F.3d 146 (6"

Cir. 1996). The ALJ credited the treating physicians’

assessments and diagnoses, evaluated the extent to which the

severity of the plaintiff's pain could reasonably be accepted as

consistent with the medical evidence, and found plaintiff's

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testimony about the extent of his pain was not fully credible.

“({A]n ALJ’s findings based on the credibility of the applicant

are to be accorded great weight and deference, particularly

since an ALJ is charged with the duty of observing a witness’s

demeanor and credibility.” Walters, 127 F.3d at 531.

Nevertheless, an ALJ’s assessment of a claimant's credibility

must be supported by substantial evidence. Jd. We find that

there is substantial evidence in the record to support the ALJ’s

adverse credibility finding and conclusions that neither

plaintiff's pain nor the side effects of pain medication

precluded him from performing the identified jobs.

Next, it is argued that the ALJ mischaracterized the

physical limitations identified by Dr. Raff as allowing light

work. On the contrary, the ALJ’s finding that the restrictions

were consistent with a range of light work is supported by

substantial evidence. There was no limitation imposed on the

amount of time plaintiff could stand or sit in a work day, only

the requirement that the work provide him the freedom to

alternate between sitting and standing as needed. Plaintiff

seems to argue that because he could not perform a full range

of light work, he should have been restricted to sedentary

work and found disabled because there are no unskilled

sedentary jobs that allow for frequent postural changes. When

a Claimant’s functional abilities exactly meet the definition for

a category of work, i.e., light work, the Medical-Vocational

Guidelines, or “grids,” allow the ALJ to take notice of the

number of jobs available in the national economy. Heston,

245 F.3d at 537. When, however, the claimant’s

characteristics do not exactly match the definition of, for

example, light work, his residual functional capacity is used

as the proper framework to determine whether he is disabled.

Wright v. Massanari, 321 F.3d 611, 615 (6" Cir. 2003). This

is precisely what the ALJ did in this case when he determined

the plaintiff's specific limitations and posed a hypothetical to

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the vocational expert concerning the number of simple,

unskilled light work jobs that would also allow for frequent

postural changes.”

After de novo review of the administrative record, we find

the ALJ’s conclusions are supported by substantial evidence

and affirm.

Ill.

In the alternative, plaintiff argues for remand for

consideration of evidence that was not before the ALJ, but

was submitted to the Appeals Council with the request for

review. When the Appeals Council considers new evidence

but declines to review the application for disability benefits,

that evidence may not be considered as part of the record for

purposes of the substantial evidence review. Foster v. Halter,

279 F.3d 348, 357 (6" Cir. 2001); Cline, 96 F.3d at 148.

Remand under sentence six of 42 U.S.C. § 405(g) requires

that the evidence be both new and material, and that there was

good cause for not presenting it in the prior proceeding.

Foster, 279 F.3d at 357. Evidence is “new” only if it was not

in existence or was not available prior to the ALJ's decision.

Id. Such evidence is “material” if there is a reasonable

probability that the ALJ would have reached a different

? Social Security Rule 83-12 explains that when an individual’s

residual functional capacity does not coincide with the definitions

of any one of the ranges of work, the occupational base is affected

and, when that effect is not clear, the ALJ is to consult a vocational

resource. If the exertional level falls between two “grids” that

would direct opposite conclusions concerning disability, more

difficult judgments are involved as to the sufficiency of the

remaining occupational base and the assistance of a vocational

expert is advised.

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decision had the additional evidence been presented. Jd. A

claimant shows “good cause” by demonstrating a reasonable

justification for the failure to acquire and present the evidence

at the hearing before the ALJ. /d.

At issue here is a one-page functional capacity assessment

prepared by Dr. Raff in May 2005, after the ALJ’s decision

finding that plaintiff was not disabled. On that form, Dr. Raff

indicated that plaintiff could only lift 10 pounds occasionally

and 5 pounds frequently, could only work four hours a day,

and would have to be free to alternate between sitting and

Standing at will. Dr. Raff also noted that he had been out of

the country on military duty between May 11, 2004, and May

2, 2005, and confirmed that he was not available to answer

interrogatories, act administratively, or clinically attend to

plaintiff's care during that time.

To be sure, this assessment reflected greater exertional

restrictions that would not be consistent with light work. We

agree with the district court that this evidence is not material,

however, because Dr. Raff offered no explanation for why his

opinion of plaintiff's functional capacity had changed from

January 2004. This is particularly significant as Dr. Raff had

released plaintiff from his care and was out of the country

from May 2004 through May 2005. Without an explanation

for the change, it is not likely that the ALJ would have

reached a different decision had the additional evidence been

presented. The evidence is also not new because plaintiff

could have requested a second assessment by Dr. Raff after

receiving the letter in January 2004, or after the first denial of

his application in March 2004. Plaintiff has not met the

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burden of demonstrating that a sentence six remand is

warranted.°

AFFIRMED.

> While it is not clear whether the district court’s decision not to

remand should be reviewed de novo or for abuse of discretion, we

need not resolve the question because we would affirm under either

standard. Compare Perkins v. Apfel, 14 Fed. App’x 593 (6" Cir.

2001), and Cranfield v. Comm’r, Soc. Sec, 79 Fed. App’x 852 (6"

Cir. 2003).

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APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

No. 2:05-CV-195

[Filed March 9, 2006]

TIMOTHY CRAIG TEMPLETON

Vv.

JO ANNE B. BARNHARDT,

Commissioner of Social Security

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MEMORANDUM OPINION

The plaintiff Timothy Craig Templeton has filed a motion

for summary judgment on his complaint to obtain judicial

review of the final decision of the defendant Commissioner of

Social Security Jo Anne B. Barnhardt denying his application

for disability insurance benefits under the Social Security Act.

The defendant has also filed a motion for summary judgment.

Mr. Templeton was born in 1961 and was 43 years old at

the time of his administrative hearing. [Tr. 190]. He

completed high school and has relevant past work experience

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as a shipper and crane operator. [Tr. 12]. Mr. Templeton

alleges he is disabled as of May 30, 2003, from a herniated

disc and constant pain in his lower back. [/d.]. Based upon a

finding that his severe impairments were not severe enough,

the Administrative Law Judge [ALJ] found that Mr.

Templeton was not disabled as defined by the Social Security

Act. [Tr. 15}.

At Mr. Templeton’s administrative hearing held on

February 3, 2005, the testimony of Mr. Templeton and

vocational expert Cathy Sanders was received into evidence.

[Tr. 179-95]. Mr. Templeton testified he “made it by” in

school. [Tr. 179}. He worked for at least 23 years at a glass

plant. [Tr. 180]. Mr. Templeton had various jobs, including

packing glass, working on the float line, building crates, and

running an overhead crane. [/d.]. Mr. Templeton was hurt on

the job in May 2003. [Tr. 182]. Aside from his back pain, he

also suffers from high blood pressure and depression. [Tr.

187, 189}.

Vocational expert Cathy Sanders testified next that Mr.

Templeton’s past relevant work as a crane operator was heavy

and skilled and his work as a shipper was heavy and

unskilled. [Tr. 192]. The ALJ then asked her to assume a man

of Mr. Templeton’s age, education, and work background

who was restricted to light work which would require lifting

of up to 20 pounds occasionally and 10 pounds frequently.

[/d.]. Such a person would also need a simple, unskilled job

that allowed for frequent postural changes. [/d.]. The

vocational expert testified such a person could work as a gate

guard, parking lot attendant, information clerk, and ticket

clerk. [Tr. 193].

The ALJ ruled that Mr. Templeton was not disabled

because his musculoskeletal impairments and intellectual

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impairment were not severe enough for a finding of disability.

[Tr. 15]. The ALJ then found Mr. Templeton retained the

residual functional capacity [RFC] to perform simple,

unskilled light work that allows for frequent postural changes.

[Tr. 16]. With those limitations, Mr. Templeton could

perform work that exists in significant numbers in the national

economy. [Tr. 17].

This court must affirm an ALJ’s conclusions unless the

ALJ applied incorrect legal standards or made findings of fact

unsupported by substantial evidence in the record. 42 U.S.C.

§ 405g. “Substantial evidence” is such relevant evidence as

a reasonable mind might accept as adequate to support a

conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971).

“The findings of the Commissioner are not subject to reversal

merely because there exists in the record substantial evidence

to support a different conclusion.” Buxton v. Halter, 246 F.3d

762, 772 (6" Cir. 2001). Accordingly, this court may not try

the case de novo, nor resolve conflicts in the evidence, nor

decide questions of credibility. Walters v. Commissioner of

Soc. Sec., 127 F.3d 525, 528 (6" Cir. 1997).

Mr. Templeton requests summary judgment and

challenges the ALJ’s finding that he could perform light

work. The ALJ determined Mr. Templeton retained the RFC

to perform simple, unskilled light work that allows for

frequent postural changes. [Tr. 16]. Light work involves

lifting no more than 20 pounds at a time with the frequent

lifting of up to 10 pounds. It also involves a considerable

amount of standing and walking. 20 C.F.R. § 404.1567(a).

Mr. Jeff Snodgrass of Wellmont Rehabilitation Services

assessed Mr. Templeton in December 2003. [Tr. 119-43]. He

found Mr. Templeton could lift up to 10 pounds occasionally

and carry, push, and pull up to 20 pounds occasionally. [Tr.

142}. Dr. John Raff, one of Mr. Templeton’s treating

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physicians, indicated in January 2004 that he could lift no

more than 20 pounds occasionally, 10 pounds frequently, and

five pounds continuously. {[Tr. 111]. Dr. Raff based this

opinion on the results of examinations obtained by Mr.

Snodgrass. There is no evidence in the medical record from

an examining health care provider that Mr. Templeton could

not perform light work, and there is evidence from two

examining health care providers that he could perform light

work. As such, the ALJ’s determination that Mr. Templeton

could perform simple, unskilled light work that allows for

frequent postural changes was made with substantial evidence.

Mr. Templeton also contends the ALJ erred by ignoring

the testimony of the vocational expert. During the

administrative hearing, vocational expert Cathy Sanders

testified that Mr. Templeton would be unable to work if his

pain frequently interfered with his ability to concentrate and

persist at work tasks. [Tr. 194]. The ALJ, however, found

that Mr. Templeton’s allegations of disabling pain were not

entirely credible. [Tr. 17]. Essentially, then, because the ALJ

discounted any notion that Mr. Templeton’s pain was so

severe that he would be unable to concentrate and perform, he

necessarily discounted the vocational expert’s testimony. The

ALJ’s decision was not in error, and this court will note that

it is not within its purview to revisit issues of credibility.

Walters, 127 F.3d at 528.

Finally, Mr. Templeton asks this court for a remand

pursuant to the sixth sentence of 42 U.S.C. § 405(g) for new

evidence. The alleged new evidence is a May 2005 statement

from Dr. Raff. [Tr. 174]. In the statement, the doctor

indicated Mr. Templeton could occasionally lift 10 pounds

and frequently lift five pounds. [/d.]. Dr. Raff also indicated

that Mr. Templeton would have to “be free to alternate

between sitting or standing positions at will as dictated by

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symptoms of back pain and leg numbness” and could only

work for four hours a day. [/d.]. Dr. Raff wrote that he had

been out of the country on military duty from May 11, 2004,

until May 2, 2005. [/d.]. |

This court can remand the case to the Commissioner upon

a showing by Mr. Templeton that this new evidence is

material to his case and that there was good cause for his

failure to include this evidence earlier. 42 U.S.C. § 405 (g).

Evidence is new only when it was not in existence and not

available prior to an ALJ’s decision. Sullivan v. Finkelstein,

496 U.S. 617, 626 (1990). Evidence is material if there is a

reasonable probability the ALJ would have reached a different

decision had the additional evidence been presented. Foster v.

Halter, 279 F.3d 348, 357 (6" Cir. 2001).

This court finds the evidence is not material because Dr.

Raff failed to explain why his opinion of Mr. Templeton’s

abilities changed from January 2004' to May 2005, especially

since the doctor was admittedly out of the country and not

treating Mr. Templeton for the majority of that time. Without

an explanation for the change, it is unlikely the ALJ would

have reached a different conclusion. In addition, the evidence

in not new, insofar as Dr. Raff couid have filled out a similar

statement prior to his leaving for military duty. And, Mr.

Templeton has not provided sufficient explanation for why

Dr. Raff did not compiete such a form earlier.

Because the evidence from Dr. Raff was not material and

good cause was not provided for the failure to include this

‘In January 2004, Dr. Raff indicated Mr. Templeton could lift no

more than 20 pounds occasionally, 10 pounds frequently, and five

pounds continuously. [Tr. 111].

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evidence earlier, Mr. Templeton’s request for a remand

pursuant to sentence six of 42 U.S.C. § 405 (g) is denied.

After careful consideration of the entire record of

proceedings related to this case, Mr. Templeton’s motion for

summary judgment will be denied, the defendant’s motion for

summary judgment [Doc. 14] will be granted, and this action

will be dismissed.

An appropriate order will follow.

ENTER:

/s/Thomas Gray Hull

THOMAS GRAY HULL

SENIOR U. S. DISTRICT JUDGE

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APPENDIX C

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

No. 2:05-CV-195

[Filed March 9, 2006]

TIMOTHY CRAIG TEMPLETON

v.

JO ANNE B. BARNHARDT,

Commissioner of Social Security

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JUDGMENT

This is an action for judicial review of the final decision

of the defendant Commissioner denying the plaintiff's

application for disability insurance benefits under the Social

Security Act.

Pursuant to a memorandum opinion filed herewith, the

plaintiff's motion for a judgment on the pleadings is

DENIED; the defendant’s motion for summary judgment is

GRANTED; and this action is DISMISSED.

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ENTER:

/s/Thomas Gray Hull

THOMAS GRAY HULL

SENJOR U. S. DISTRICT JUDGE

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APPENDIX D

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

No. 2:05-CV-195

[Filed April 4, 2006]

TIMOTHY CRAIG TEMPLETON )

)

v. )

)

JO ANNE B. BARNHARDT, )

Commissioner of Social Security _)

si )

ORDER

The plaintiff Timothy Craig Templeton has filed a motion

to alter or amend this court’s findings and conclusion from its

March 9, 2006, memorandum opinion and judgment. The

defendant Jo Anne B. Barnhardt has filed a response. For the

reasons indicated below, Mr. Templeton’s motion is denied.

Mr. Templeton contends this court erred in failing to find

that he was limited to less than light work. He claims his

inability to stand for long periods of time removes him from

being able to perform light work. The Administrative Law

Judge [ALJ] took into consideration Mr. Templeton’s inability

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to stand in one place for considerable time by limiting him to

light work with frequent postural changes. This court affirmed

that portion of the ALJ’s decision in its March 9, 2006,

opinion and has not now been presented with any information

which would indicate that decision was in error.

Mr. Templeton next claims this court erred by

predetermining that the evidence from Dr. Raff would not

have changed the ALJ’s decision. This is not what this court

found. Instead, this court found “Without an explanation for

the change [in Dr. Raff’s opinion], it is unlikely the ALJ

would have reached a different conclusion.” [Emphasis

added]. Pursuant to sentence six of 42 USC § 405 (g), this

court had to determine if the evidence Mr. Templeton wanted

considered on remand was material, inter alia. And, evidence

is material if there is a reasonable probability the ALJ would

have reached a different decision had the additional evidence

been presented. Foster v. Halter, 279 F.3d 348, 357 (6" Cir.

2001). The court considered the probability the ALJ would

have reached a different decision to be unlikely and ruled as

such. Mr. Templeton’s claim that this court predetermined

anything is specious.

Lastly, Mr. Templeton claims this court erred by finding

he should have submitted the opinions of Dr. Raff to the ALJ

before the matter was even set for a hearing. Pursuant to

sentence six of 42 USC § 405 (g), this court had to determine

if there was good cause for Mr. Templeton’s failure to

include earlier the evidence he wanted considered on remand,

inter alia. Pursuant to Sullivan v. Finkelstein, 496 U.S. 617,

626 (1990), evidence is new only when it was not in existence

and not available prior to an ALJ’s decision. In Mr.

Templeton’s case, the evidence might not have been in

existence yet (i.e., the form was not yet completed), but it

was available. Dr. Raff used information from his treatment

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of Mr. Templeton prior to the ALJ’s decision to make his

recommendations.

After careful consideration of the evidence related to Mr.

Templeton’s motion to alter or amend, his motion ts

DENIED.

ENTER:

/s/Thomas Gray Hull

THOMAS GRAY HULL

SENIOR U. S. DISTRICT JUDGE

24a

APPENDIX E

DOUGLAS T. JENKINS

ATTORNEY AT LAW

US BANK BUILDING

107 East Main Street

Suite 321

Rogersville, TN 37857

Telephone 423-921-8800

Facsimile 423-921-8845

June 4, 2005

Appeals Council

Office of Hearings and Appeals

5107 Leesburg Pike

Falls Church, Virginia 22041-3255

RE: TIMOTHY C. TEMPLETON

SSN [REDACTED}-9506

Dear Sirs:

I am writing to appeal Judge Michael J. Davenport’s decision

in this matter dated April 11, 2005: The evidence in this case

supports a finding of disabled.

The ALJ erred by failing to give the claimant’s treating

physician’s, Dr. Raff's, opinion controlling weight pursuant

to 20 CFR 416.927(d)(2), and by failing to find the claimant’s

assertions credible when they were supported by Dr. Raff.

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25a

Further, Dr. Raff had been out of the country on active

military duty from May 11, 2004 through May 2, 2005, and

was unable to render his opinion for this claim as to the extent

of Mr. Templeton’s disability. The ALJ was mistaken about

the level of work Dr. Raff believed the claimant could

perform. I am enclosing a Medical Statement Regarding

Physical Abilities and Limitations that Dr. Raff has been able

to prepare since returning from active duty in Afghanistan.

The ALJ also failed to consider the claimant’s testimony about

his emotional problems even though he is medicated and

treated for same.

The claimant asks the Appeals Council to reverse the ALJ’s

decision and find that he is entitled to disability benefits.

With kindest personal regards, I remain

Yours very truly,

/s/

Douglas T. Jenkins

DTJ/cp

EXHIBIT

AC-2

26a

MEDICAL STATEMENT REGARDING PHYSICAL

AND MENTAL ABILITIES AND LIMITATIONS FOR

SOCIAL SECURITY DISABILITY CLAIM

[Fold out exhibit see next page]